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An Odd Sort of Ad Hominem Criticism in an Appellate Dissent:

From the start of Judge Wiener's dissent in Severance v. Patterson (some paragraph breaks added):

With genuine regard and respect for my colleagues of the panel majority, I must dissent.

I. CONTEXT

Although undoubtedly unintentionally, the panel majority today aids and abets the quixotic adventure of a California resident who is here represented by counsel furnished gratis by the Pacific Legal Foundation. (That non-profit’s published mission statement declares that its raison d’être includes “defend[ing] the fundamental human right of private property,” noting that such defense is part of each generation’s obligation to guard “against government encroachment.”) The real alignment between Severance and the Pacific Legal Foundation is not discernable from the record on appeal, but the real object of these Californians’ Cervantian tilting at Texas’s Open Beaches Act (“OBA”) is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA, precisely the kind of legislation that, by its own declaration, the Foundation targets.

And it matters not whether Ms. Severance’s role in this litigation is genuinely that of the fair Dulcinea whose distress the Foundation cum knight errant would alleviate or, instead, is truly that of squire Sancho Panza assisting the Foundation cum Don Quixote to achieve its goal: Either way, the panel majority’s reversal of the district court (whose rulings against Severance I would affirm) has the unintentional effect of enlisting the federal courts and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers in this thinly veiled Libertarian crusade. It is within this framework that I shall seek to demonstrate how the panel majority misses the mark and why Severance’s action should be dismissed, once and for all, for her lack of standing to assert either a Fifth Amendment takings claim for reasonable compensation (because Severance has had nothing taken by the State) or a Fourth Amendment unreasonable seizure claim (because that which was putatively seized did not belong to Severance at the time; and even if it had, there was nothing unreasonable about the purported seizure).

Maybe I’m mistaken, but this seems a bit troubling. Appellate decisions should be about which side has the better argument, not whether some side is on a “Libertarian crusade,” or whether they are California or Texas residents, or what a law firm’s mission statement might be, or whether the party or the law firm is in the driver’s seat. Starting an opinion with a condemnation of the supposedly carpetbagging Libertarian lawyers, and then saying that this judgment about the lawyers and their plans provides a “framework” for the substantive analysis, doesn’t seem to me to be the right approach.

To be sure, a case’s being part of a broader litigation campaign might have some indirect relevance to a court decision, especially when the law isn’t clear. For instance, say a court is considering some proposed legal principle (e.g., considering whether and when the intentional infliction of emotional distress tort should be available to award damages based on the content of certain newspaper articles), and is evaluating the possible future consequences of the principle. A party’s or law firm’s long-term litigation strategy — e.g., a law firm's clear plans to bring this as a test case aimed at setting precedent for broader restrictions — might provide some useful example cases against which the rule will be tested. If a court knows that case B is coming down the pike, and that case A is just a means for trying to set a precedent supporting a certain result in B, a court might want to consider both cases A and B in figuring out the right rule now in case A.

But even there the identity and plans of a law firm are of extremely limited relevance. After all, if a court is worried about possible future consequences of the decision, those consequences could arise even in cases involving completely different law firms. And that’s true whether or not this firm is part of a “crusade,” or cares only about a particular case; the focus should be on what cases might actually be brought, not on what the law firms’ supposed agenda (or principal place of business) might be. All the more reason, I think, to focus on the parties’ arguments — even if one includes the long-term consequences of the arguments — rather than on who the lawyers are.

That’s why the majority opinion, written by Judge Edith Jones and joined by Judge Clement, strikes me as setting forth the better approach:

Notwithstanding the hyperbolic and unsupported assertions in Part I of the dissent (“Context”), the judges of the court endeavor not to decide appeals based on who the litigants are, who their lawyers are, or what we may believe their motives to be. Whether that rule is observed in light of Part I of the dissent, however, the reader must determine.

Related Posts (on one page):

  1. Fifth Circuit Decision Illustrates Second-Class Status of Constitutional Property Rights:
  2. An Odd Sort of Ad Hominem Criticism in an Appellate Dissent:
ruuffles (mail) (www):

Appellate decisions should be about which side has the better argument, not whether some side is on a "Libertarian crusade," or whether they are California or Texas residents, or what a law firm's mission statement might be, or whether the party or the law firm is in the driver's seat.

How is this different from Scalia's rant about the "homosexual agenda"?
4.24.2009 12:30pm
ruuffles (mail) (www):
Here is the full quote

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.
4.24.2009 12:31pm
MS (mail):
Jones and Wiener are both excellent judges, but they're both results oriented. I'd bet Wiener is just venting about something snide that Jones said in conference.
4.24.2009 12:41pm
anon!:
The quote above is somewhat reminiscent of Scalia's rant in Lawrence against the Court's endorsement of the gay agenda. I thought Scalia had the better of the argument, but this odd aside undermined the rhetorical force of his dissent.
4.24.2009 12:43pm
Arturito:
"Cervantian tilting"...

Must find a way to work that into my next cocktail party conversation.
4.24.2009 12:47pm
Connecticut Lawyer (mail):
It looks to me like Judge Wiener is bucking for a SCOTUS nod from the Obama administration.
4.24.2009 12:47pm
Judge Weener:
As far as I know, Scalia's aside about the homosexual agenda did not purport to underpin his whole opinion.
4.24.2009 12:47pm
LawClerk1 (mail):
A few comments:
1. MS, listen to the oral argument online. It appears that Judge Weiner was pretty hostile from the get-go, so I doubt Judge Jones said something snide at conference to touch this off. Also, this case was argued a long time ago...close to two years, I think. I really doubt it is something as trivial as that.

2. Look at local rule of misconduct 3(h). It would appear that this kind of commentary wades into misconduct territory. Apparently "personally derogatory remarks irrelevant to the issues" might be cognizable misconduct, in addition to whatever other norms or cannons might be implicated here.

3. Overall, this strikes me as very undignified and, frankly, pretty lame. Judge Weiner has been around a long time and his view of the merits is almost certainly unchanged by the fact that a conservative/libertarian group brough this. So why say this stuff at all? Just out of spite or personal animus? When I was a clerk, I would have strongly advised my judge to cut this and just let it go unsaid. It serves no useful purpose.

LC1
4.24.2009 12:52pm
Chico's Bail Bonds (mail):
It looks to me like Wiener is saying the party and law firm manufactured a phony controversy to get an advisory opinion to help their "crusade." The identity and plans of the law firm are directly relevant to this inquiry. This is a completely appropriate line of inquiry because federal courts do not have jurisdiction to decide phony controversies.

Whether Wiever is right or wrong about the controversy being phony, I don't know, but Volokh's criticism of Wiener seems wrong.
4.24.2009 1:03pm
OrinKerr:
Very good pos, Eugene. I agree: The judges should just decide the case on the facts and the law and leave the motivations of the lawyers out of it.
4.24.2009 1:03pm
OrinKerr:
Chico,

It sounds like you're saying that the identity and plans of the law firm are doctrinally relevant. Can you explain how they are relevant? Is there a doctrinal test I am missing that factors in law firm plans?
4.24.2009 1:06pm
Ursus Maritimus:
Can this reasoning be used to dismiss complaints against school prayer or state 'subsidies' to the boyscouts?
"You're just raising this case because you are crusading against religion in public places, thus the motion is DENIED! Neener-Neener!"
4.24.2009 1:08pm
LawClerk1 (mail):
Chico,

That's very wishful reading. I don't think he is saying that there is no controversy or that it's a fake controversy, I think he is saying that the "bad guys" are trying to take advantage of the situation to create precedent, and that he doesn't like their motives.
4.24.2009 1:12pm
mga (mail):
There is a mid-80's opinion of the Supreme Court of Missouri in which the dissent starts by questioning how "even one so politically oriented" as the author of a concurring opinion could reach the result he did. It concludes by suggesting that the losing party file a cert. petition on the theory that 14th amendment due process requires state supreme courts to construe state constitutional provisions logically, which, in the dissenter's opinion, the majority had not.
4.24.2009 1:13pm
Chico's Bail Bonds (mail):
Baker v. Carr says that litigants must have a "personal stake in the outcome" to assure "concrete adverseness which sharpens the presentation of issues which the court so largely depends for illuminations of difficult constitutional questions." That is the doctrine.

Wiener seems to be accusing the law firm of manufacturing the plaintiff's "personal stake in the outcome," when she really has none. As a factual matter, if the law firm is on a quixotic quest to overturn the law, it makes it more likely that that the alleged injury in fact is a sham and not sincere. See Fed. R. Evid. 401. It's not the strongest evidence in the world, but it is evidence.

I'm pretty sure there are cases out there where courts dismiss cases after deciding that the parties colluded to get a judicial ruling on an issue when they really had no factual dispute between them. The inquiry into the parties' collusive motives in those cases would be analagous to the inquiry of the law firm's and plaintiff's motives in this case.
4.24.2009 1:29pm
DG:
{How is this different from Scalia's rant about the "homosexual agenda"?}

Its equally bad and equally unprofessional
4.24.2009 1:34pm
Prof. S. (mail):
Is a "libertarian crusade" any worse than the typical law firm motivation - namely, money.
4.24.2009 1:34pm
Frog Leg (mail):
Compared to most opinions from the Michigan Supreme Court, the dialogue her between opinion and dissent is a model of civility.
4.24.2009 1:35pm
PubliusFL:
Chico's: The inquiry into the parties' collusive motives in those cases would be analagous to the inquiry of the law firm's and plaintiff's motives in this case.

Not at all. Collusive motives are obviously important in cases such as you describe because collusion between the opposing parties means there's no real controversy. Collusion between a party and her own law firm is, to put it mildly, not shocking.
4.24.2009 1:36pm
Chico's Bail Bonds (mail):
LawClerk1:

Look at page 33 of the opinion: "Never having had the right to exclude the public from the dry beach, Severance has suffered no *injury* and thus has no standing."
4.24.2009 1:37pm
Chico's Bail Bonds (mail):
PubliusFL:

Try this logic:

Where a suit involves a plaintiff who sought out a law firm, it is somewhat more probable the plaintiff suffered a real injury. Where a suit involves a law firm who sought out the plaintiff, it is somewhat less probable the plaintiff suffered a real injury.

Look at this empirical evidence:

Cal. Business &Professions Code 17200.
4.24.2009 1:42pm
unwelcome guest:
It actually reminded me a little of Scalia's discussion about the plaintiffs' assertion of injury in the opinion in Lujan. Chico's is right - this is about standing.

I also agree with all those who want less snark in opinions.
4.24.2009 1:46pm
LawClerk1 (mail):
Hey Chico,

I don't think quoting from the dissent's conclusions that the Plaintiff never had the right to exclude is overly persuasive. I mean, I think that is the point of the case: to determine whether she had and/or has the right to exclude. Judge Weiner taking that view of it is fine (whether right or wrong), but that has nothing to do with the motivations of the law firm. It seems to me that the Plaintiff here claims harm in that she is unable to exclude people from what everyone seems to agree is her property (at least in part). Whether the public has some kind of "easement" that changes locations with the weather is at the heart of the case, as is whether any compensation is due for that changing easement. I mean, the way I understand the facts from the majority, this lady had a house near the beach, then a hurricane came along and made her house on the beach. Then the state said "we're going to knock down your house and you have to let people walk all over the spot where it used to be." Maybe that's a taking, maybe it's not---but it doesn't sound like someone went out and ginned up a dispute.

As for collusion, that's been amply answered by Publius.
4.24.2009 1:52pm
Ariel:
Chico,

Where a suit involves a plaintiff who sought out a law firm, it is somewhat more probable the plaintiff suffered a real injury. Where a suit involves a law firm who sought out the plaintiff, it is somewhat less probable the plaintiff suffered a real injury.

You mean like most class actions?
4.24.2009 1:56pm
FormerStudent:

"Because of certain systemic flaws, it is hard to respond to the dissent, which asserts that Texas law is utterly clear. For instance, the dissent does not deign to interpret the OBA's language; to respond to this opinion's analysis of lower Texas cases; to note the law review
articles that have discussed the OBA; or to engage in a historical survey of Texas land title law to support its position. See, e.g., Luttes v. State, 324 S.W.2d 167 (Tex. 1958) (analyzing ownership of Texas beach land based on Spanish land grants). Moreover, it is not even clear that the dissent has read the majority opinion, which does not "declare that with each shift of the vegetation line, a new easement is born." That is an issue the Texas Supreme Court must address. Nor does this opinion hold that Severance's claim "will ripen in the future." That depends on what Texas courts do in this or other cases."


Sheeesh.

On another note: Chico, I hate to feed a troll, but I think you may be confusing cases where there was collusion between the parties with whatever you think is going on here. The judge is complaining about the motives of plaintiff's lawyers and the people who hired them. The cases you reference involving collusion aren't helpful because the state of Texas is on the other side of the case, (I would insert "obviously" here, but apparently it isn't) not Plaintiff's lawyers.
4.24.2009 1:58pm
Chico's Bail Bonds (mail):
LawClerk1:

You said I was engaging in "wishful reading" by saying the dissent was about a lack of controversy. I think the dissent's explicit statement I quoted from that he thought there was no standing is highly persuasive that I was not engaging in "wishful reading."

As for Publius, he has not persuaded me that the fact a lawyer rather than a client is driving a law suit is irrelevant to whether the client suffered an injury.
4.24.2009 2:00pm
Chico's Bail Bonds (mail):
Ariel:

Yes, exactly.
4.24.2009 2:01pm
Timothy Sandefur (www):
PLF has issued a statement regarding the Severance decision, which you can read at PLF on Eminent Domain.
4.24.2009 2:01pm
Chico's Bail Bonds (mail):
Former Student:

Nope, not confused at all by the distinction between collusion between parties and collusion between lawyers and clients. That's why I said the cases are "analogous," instead of "100% directly on point."
4.24.2009 2:05pm
Abdul Abulbul Amir (mail):

Notwithstanding the hyperbolic and unsupported assertions in Part I of the dissent ("Context"), the judges of the court endeavor not to decide appeals based on who the litigants are, who their lawyers are, or what we may believe their motives to be. Whether that rule is observed in light of Part I of the dissent, however, the reader must determine.


Ouch. That left a mark.
4.24.2009 2:07pm
LarryA (mail) (www):
Is a "libertarian crusade" any worse than the typical law firm motivation - namely, money.
Crusades, including libertarian ones, tend to be much more expensive even than lawsuits.
Appellate decisions should be about which side has the better argument, not whether some side is on a "Libertarian crusade," or whether they are California or Texas residents, or what a law firm's mission statement might be, or whether the party or the law firm is in the driver's seat.
I don't completely agree. I'm thinking of the "strict liability" lawsuits that were filed against firearm manufacturers and dealers. In this case the strategy was to bring a series of lawsuits that had little chance of succeeding absent a rewrite of tort liability, hoping that the legal expense of defending and winning said suits would drive companies out of business. These efforts continue, even though Congress and most states have passed laws prohibiting such lawsuits. IANAL, but law firms engaging in that sort of activity should be reprimanded, at least.

That admittedly may be a more extreme situation than the present.
4.24.2009 2:13pm
LawClerk1 (mail):
I am about done with Chico, too, but a few things. First, I didn't say you were engaging in "wishful reading", just that quoting from the dissent's conclusion is not greatly persuasive on whether that conclusion is right. Second, on collusion between client and lawyer: you must not practice law. I always collude with my clients. It's what they hire me for. Third, the origin of the anti-collusion doctrine between parties is that Courts will only resolve "cases or controversies" and will not issue advisory opinions. Thus, where both parties agree on the outcome but pretend to disagree, there is no case or controversy. Where an interest group brings cases on behalf of people who might not otherwise be able to do so (or care to spend money to do so), that's called pro bono work.
4.24.2009 2:18pm
Simon P:
For some reason, these kind of posts on the VC always make me think of Jon Lovitz's "Tales of Ribaldry." The VC'er claims to be upset by judges going beyond the bounds of appropriate judicial conduct -- here, by launching an attack on a libertarian issue organization; elsewhere, I've seen it in discussions about judicial recommendations for judicial appointments -- but it comes off as almost deliberately naive. Like, "Oh, my! Judges sometimes act like politicians! My face is crimson! They're not supposed to do that! How naughty!"

No, the identity of an issues organization like the PLF is not "doctrinally relevant" (to refer to Kerr's annoyingly reductive strawman). But as long as the decision rests on an appropriate legal foundation, references to the political motivations of a lawsuit (and criticisms against such motivations) strike me as harmless, particularly in a dissent or non-binding concurrence. Indeed, they could even be beneficial, by shedding some insight into political trends and movements the reader of a dispassionately formalist opinion might not catch on his own.

(I think there's a certain irony here, too, in that the judge is up for criticism, but the PLF is not. I guess it's inappropriate for judges to act like politicians, but not for organizations like the PLF to push for changes through judicial activism that might more appropriately be sought through legislation or constitutional amendments.)

The only basis we have here for believing that Wiener's opinion gave substantive significance to the PLF's politics is his use of the word "framework," but absent some description of his legal reasoning, I don't this as meaningful. He might just as easily have said that his analysis would occur within a particular "context" or with a particular "history in mind," and the sense would have been the same. No judicial opinion is without a "framework," in this sense; they vary only in how explicit they make that framework out to be.
4.24.2009 2:27pm
Chico's Bail Bonds (mail):
LawClerk1 debates himself:

Point:


Chico,

That's very wishful reading.


Counterpoint:


I am about done with Chico, too, but a few things. First, I didn't say you were engaging in "wishful reading"


I collude with my clients too, but in a very specific way. My (plaintiff) client gets injured in some way, and I sue the person who injured him. When my client gets injured and can't afford to pay me, that's pro bono.

The way I don't collude with my client is say "I really don't like Municipal Code 44444(a)(ii), let's find a way to make it seem you got injured by it."
4.24.2009 2:27pm
TerrencePhilip:
Judge Wiener appears, from my quite limited experience, to usually be courteous and gracious in person, including at oral argument.

His opinions are usually pompous, however, with relevant thoughts often fragmented and half-stuffed into footnotes. He makes his opinions a lot more complicated than they need to be.

Here, he has really gone off the deep end.
4.24.2009 2:43pm
Assistant Village Idiot (mail) (www):
Ruffles, it's a fair question. I think there is a slight difference, though I am unsure how telling it is.

Judge Wiener is making a political rather than legal argument - and a pretty good one, if you agree with the politics. But separating this from the legal argument is critical to a judge's position.

Scalia was making the accusation that others were making a political rather than legal argument. Not quite the same. Of course, once he says that out loud it becomes a political argument of its own, leading us into some logical version of Russell's Paradox. "They started it" is perhaps not a sophisticated argument, but it has force even in legal arguments because it is a difference.
4.24.2009 2:44pm
dmv (mail):
Chico, FTW.
4.24.2009 2:52pm
Carol Severance:
I am the plaintiff in Severance v. Patterson. Neither PLF or me are "Californians' Cervantian tilting at Texas Open Beaches Act ("OBA")" as Judge Wiener has chosen so eloquently to describe our efforts.

The reference to some imaginary enemy that we are fighting couldn't be further from the truth.

Imagine purchasing beachfront property in fee simple as a hard-earned investment, only to receive letters from some "imaginary" official that they are now on the public beach simply because a storm made the plants grow on the landward side of your homes. The letters say state officials may remove your home at any time. And state law says, that because the vegetation moved, you have no right to exclude trespassers from your doorstep and no right to build or repair because a public easement supposedly now controls the land. There is no compensation or even a mechanism to seek it.

There is nothing imaginary about this scenario -- it was all very real to me -- because that's what happened.

Before receiving those letters from officials at the Texas General Land Office, I had never heard of PLF. I knew I had to do something to protect my property rights. After researching other cases in Galveston, I contacted PLF. They did not contact me. I am grateful that they exist and agreed to help as litigating this type of case against the government's tax payer funded attorneys for years is far too expensive for any one person.
4.24.2009 2:53pm
David Welker (www):
I see nothing improper at all in the dissent.

I do suspect there is something highly improper in the majority opinion. It seems quite clear to me that the the majorities failure to recognize that there was only one dynamic easement in this case is primarily ideological. It is not uncommon for property lines or the precise boundaries of easements to change due to physical changes. This is not a radical new doctrine, but is instead firmly established. Yet, the majority adopts the radical position that each physical change gives rise to a new easement. Wow. Talk about stretching the law because you don't like the result.

In other words, quite clearly the majority is involved in stretching the law for blatantly ideological reasons.

Should I be surprised that Edith Jones, who has famously criticized the "exercise of raw judicial power" in her entirely inappropriate concurring opinion action of launching on a tirade criticizing the Supreme Court in McCorvey v. Hill (which, last time I checked, sat above, not below the Fifth Circuit Court of Appeals) is here herself exercising raw judicial power to avoid a result she dislikes?

That Edith Jones would dare to join a majority decision with a footnote that questions the propriety of the dissent in this case when she is the queen of inappropriateness in judicial opinions herself, is at first glance surprising. But, one need only remember that many scoundrels are also hypocrites to overcome such surprise.


Appellate decisions should be about which side has the better argument, not whether some side is on a "Libertarian crusade," or whether they are California or Texas residents, or what a law firm's mission statement might be, or whether the party or the law firm is in the driver's seat.


Let us consider standing for a second. One prong of standing law is that one must have more than a generalized grievance. One must have more than a purely ideological desire to shape the law or see it enforced.

It is precisely cases like this by the Pacific Legal Foundation that the doctrine of standing is supposed to keep out of court. This is a generalize grievance -- the Pacific Legal Foundation wants to attack the Texas Open Beaches Act. To the extent that Ms. Severance, and her false claim against the state for an injury actually casued by nature come into play, she is merely a pawn of the Pacific Legal Foundation in a quintessentially ideological game. Here, the existence of the dynamic easement existed before the plaintiff purchased the property. The purpose of this case is, as the dissent notes, more to attack the validity of the Texas Open Beaches Act than to seek redress for injuries supposedly caused to Ms. Severance by the State of Texas (when in fact any such injuries were caused by nature -- surprise surprise -- hurricanes do sometimes damage property.)

The reason that the dissent mentions the ideological foundations of the case is not because the judge here would rule against the ideological plaintiffs who brought a valid case because he doesn't like who they are ideologically. Instead, he is merely pointing out that this is an entirely ideological case and keeping such entirely ideological cases out of court is the reason d' etre for the now Constitutional bar on courts hearing generalized grievances - which in this case is really against the Texas Open Beaches Act.

Now, I personally have never been a fan of this prong of standing law. However, even though I am no fan, if I were an appellate judge, I just want to state for the record that I would never issue a concurring opinion and go on a tirade against the rulings of the Supreme Court which stands above me and whom I should show respect for in the way that the very ideological Edith Jones has. The bar against generalized grievances of this sort is the law. And this is precisely the sort of purely ideological case that are supposed to be kept out of court.

It is slightly ironic that the judge who mentions ideologies is the one who is actually following the law rather than his own ideology while the judge who doesn't mention ideology has clearly employed their own ideology and their dislike of certain results to absurdly assert that every single shift of vegetation (which is a constant process) potentially results in a brand new claim against the state due to the existence of longstanding easements. Wow. Radical judicial activism is alive and well on the right.
4.24.2009 3:03pm
great unknown (mail):
And the difference between the PLF and ACLU is ... ?
4.24.2009 3:30pm
LawClerk1 (mail):
Apologies to Chico! I guess I really did write wishful thinking in that earlier post.

As for Welker, I'd read Carol's post. It's easy for us lawyers to forget that there are real people whose lives are impacted by lofty appellate opinions which, for us, are either abstract debates or just some project at work.
4.24.2009 3:32pm
CJColucci:
Simon P:
It could have been worse. One of the judges might have suggested that the legislature do something about the statute!
4.24.2009 3:44pm
Carol Severance:
Just to make sure I am not misunderstood for taking some sort of a litigation position I do not hold from my last blog post,I just want to clarify that "The Officials read state law to say that because of the vegetation migration, you have no right to exclude trespassers from your doorstep and no right to build or repair because a public easement supposedly now controls the land." The Open Beaches Act actually does not authorize any public easement based on the vegetation line. But the state Officials read and apply it differently. That is the problem, or part of it.
4.24.2009 3:47pm
Serenity Now (mail) (www):
ruufles - How is this different from Scalia's rant about the "homosexual agenda"?

Scalia criticized judges who (he thought) arrived at legal conclusions based on their political views rather than on the law. Wiener criticized a litigant (or her attorneys) for having political goals beyond the disposition of her case.

Do you need to have the significance of the difference spelled out?
4.24.2009 3:49pm
anon1:
Carol, thanks for making a comment. I think your perspective really cleared up this discussion.
4.24.2009 4:04pm
q:
David Welker, did you read the case? The judge based his standing decision on the argument that the plaintiff suffered no harm (i.e. there was no taking or seizure), not that the case was an "ideological" one. In light of the rest of his opinion, mentioning the ideology of the law firm is puzzling; it's unnecessary for him to speculate on the motives of the plaintiff or her law firm. Moreover, your statement of the law is inaccurate. Supreme Court standing doctrine does not take into account the ideologies or motives of a party, unless they shed light on possible collusion with the opposing party. See, for example, Evers v. Dwyer (1958), where there was evidence the black plaintiff boarded a bus for the sole purpose of being discriminated against in order to challenge the state law.
4.24.2009 4:07pm
q:
In case it wasn't clear, Evers granted standing to plaintiff.
4.24.2009 4:08pm
OrinKerr:
Simon P,

You seem to have a strong personal sense of that which is "harmless" and that which is "meaningful." The problem is that your personal sense is not shared by others: We seem to have a genuine disagreement about these issues. Your response seems to be to dismiss those who disagree with you, and to reassert your view that you are correct. I appreciate that you feel that way, but the statement that you do isn't likely to persuade those who look at the issue differently.

As for your point about criticizing PLF, yes, I agree we should criticize PLF. But why is that relevant? We are not judges.
4.24.2009 4:11pm
David Welker (www):
LawClerk1,

I recognize that Ms. Severance is a real person. Nonetheless, she is a real person without standing, because the easement already existed when she bought her property. End of story. Only radical judicial activism could change that result.

Ms. Severance blaming her misfortune on others (in this case, the State of Texas) is an all too human error that many people who suffer loses make. But, it is nonetheless an error. The real evil doer here is Hurricane Rita. Considering that Hurricane Rita killed people, all of whom were also "real people" and who nonetheless did not tend to blame the State of Texas for their misfortunes (to my knowledge), I think on the whole Ms. Severance could rationally consider herself rather fortunate, as far as victims of Hurricane Rita go.

Obviously, I very much wish that there were no victims of Hurricane Rita, including Ms. Severance.
4.24.2009 4:12pm
NaG (mail):
Standing has absolutely nothing to do with whether an aggrieved party or their lawyer happens to have a political agenda. The plaintiffs in Heller were gathered together precisely because someone who was ideologically opposed to the D.C. gun ban wanted to legally challenge that ban, and looked for aggrieved individuals who could serve as the plaintiffs. There was nothing -- NOTHING -- wrong with this whatsoever. In fact, it is not uncommon for appellate lawyers to identify circuit splits and then seek out litigants with clean factual records to bring challenges. All the public interest firms, from the NAACP to the ACLU to the Institute for Justice do it. That they do this in no way affects whether the actual plaintiffs have standing to make the challenges.
4.24.2009 4:24pm
GV:
I'm not sure I agree with Judge Weiner's decision to begin his dissent the way he did. But I think he's a good judge who is generally honest about what he does. And I think there's something to the idea that his introduction is relevant to the standing inquiry. (That being said, if the organization was the ACLU, I would be pissed if a judge started a dissent like that.)

Jones, however, is a complete and total hack. She cares little about the law. I'm glad someone else mentioned Jones's Roe II "concurrence." Among my favorite Jones moments was when she mocked a NAACP lawyer from Mississippi (the organization had intervened in a case) for arguing a law was constitutional. In a snide and mocking tone, she said something to the effect of "wow, the NAACP is all of a sudden not a fan of courts intervening?" I mean, really? The NAACP. From the South. If any organization has had lots of legitimate reasons in the past to argue that laws were unconstitutional, I would think it would be them. I also always liked seeing her roll her eyes on the bench during oral argument or otherwise act like a petulant child. There are a handful of smart, thoughtful, and relatively honest conservative judges on the Fifth Circuit. (Barksdale, Smith, Davis, Southwick). But Jones (and Clement) are none of those things.

/end rant
4.24.2009 4:24pm
LawClerk1 (mail):
Welker:

I think you are assuming the conclusion. I think there might be room for reasonable persons to disagree about the scope and source of the "rolling" easement. While shifting property boundaries are not entirely foreign to property law, they are somewhat rare. And it is at least plausible that Texas has overstepped its boundaries here. So it seems to me that the panel did the reasonable thing: Ask the Texas Supreme Court what Texas law is.
4.24.2009 4:30pm
GMS:
I'm sure that all you people approving of the dissent would equally approve of a judge saying, "The lawyer representing this death penalty defendant is known for crusading against the death penalty, so I consider that relevant in evaluating this appeal." Or is it just a one-way ratchet?

As to the judge's "gratis" comment, I thought courts encouraged attorneys to do pro bono work. Oh, right, that's only for work in the public interest, and property rights clearly don't have anything to do with that.
4.24.2009 4:42pm
JP22 (mail) (www):
I'm surprised no one has yet pointed out that Judge Wiener (or his clerk) does not appear to know what "cum" means. I think the word he was searching for was "qua." ;-]
4.24.2009 4:45pm
David Welker (www):
q:

You are confused. Take away the injury to this property owner (because the easement existed before) and you still have a generalized grievance about a regime of law that this plaintiff believes to be unfavorable. But, of course, generalized grievances are not judiciable. That is why this analysis is relevant. It is quite clear that this is what the dissenting judge has in mind when he writes: "the real object of these Californians' Cervantian tilting at Texas's Open Beaches Act ("OBA") is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA." That is, this case is really about a purely ideological generalized grievance, not a concrete injury.

Everyone agrees that the particular ideologies of the parties is not relevant in the sense of ruling against them or for them. But, the reason d' etre of the bar against generalized grievances is keep the judiciary from entangling itself in political matters in cases that are purely ideological. What the dissenting judge is saying here is that this case is precisely one of those sorts of purely ideological cases in which the judiciary should not entangle itself. It doesn't matter precisely how it is a purely ideological case. The ideology could be liberal, conservative, libertarian, environmentalist, whatever. In this case, the case happens to be libertarian, and that is the only reason why the judge mentions that. Of course, if this case was more than "purely ideological" it would be judiciable despite the fact that it is also ideological.
4.24.2009 4:47pm
NaG (mail):
Welker: So you would argue that the Heller case should never have had a day in court, should never have been heard by the U.S. Supreme Court, and indeed the Justices should have admonished counsel for Heller for even bringing the case?
4.24.2009 4:50pm
Bob from Ohio (mail):
Nobody expects the "Libertarian inquisition crusade".

Weiner's real sin is horrid writing. "Californians' Cervantian tilting", "Foundation cum Don Quixote". Who writes like that?

If he wants to attack someone's motives, he can learn from Judge Jones:


Notwithstanding the hyperbolic and unsupported assertions in Part I of the dissent ("Context"), the judges of the court endeavor not to decide appeals based on who the litigants are, who their lawyers are, or what we may believe their motives to be. Whether that rule is observed in light of Part I of the dissent, however, the reader must determine.


That is good writing.
4.24.2009 4:58pm
David Welker (www):

You seem to have a strong personal sense of that which is "harmless" and that which is "meaningful." The problem is that your personal sense is not shared by others: We seem to have a genuine disagreement about these issues. Your response seems to be to dismiss those who disagree with you, and to reassert your view that you are correct.


I seem to remember a similar move by Orin Kerr in being dismissive of other views when discussing the case of Pierre v. Attorney General when discussing the meaning of the word "intentional."

I bring this up only to point out that it is difficult to not be dismissive of views you disagree with sometimes. I suspect we are all guilty. Also, I am not sure it is also never justified.

That said, I am not sure how Simon P was being "dismissive." I may be missing something.
4.24.2009 5:00pm
Bob from Ohio (mail):

Everyone agrees that the particular ideologies of the parties is not relevant in the sense of ruling against them or for them.


"Everyone" apparently does not include Judge Weiner.
4.24.2009 5:00pm
David Welker (www):
NaG,

I think the view of the D.C. Circuit that Mr. Heller had standing on the basis of having his application to register his handgun denied is a reasonable one.
4.24.2009 5:12pm
David Welker (www):

"Everyone" apparently does not include Judge Weiner.


Actually, if you can read, it does include Judge Weiner. His dissent is obviously not on the basis of ideology.
4.24.2009 5:15pm
CJColucci:
David Welker, Simon P:

There's no arguing over the thickness of one's skin or the delicacy of one's sensibilities. Orin is right that "I can take it, why can't you?" is not an argument likely to persuade the more tender-minded to toughen up. But then again, "This gives me the vapors" doesn't invite reasoned discussion either.
4.24.2009 5:21pm
Simon P:
Orin, by the same token, I could point out that your argument-style seems to rely on reducing arguments with which you disagree to strawmen and then mocking them. That's the second time you've done that here.

But it's a fair point. I rely on my comparison of the VC to the "Tales of Ribaldry" to carry the criticism. I can work it out a bit more.

Eugene says that "[a]ppellate decisions should be about which side has the better argument," not about details about the parties that are extraneous to the dispute before the court. I think that's a completely unobjectionable thing to say about legal conclusions; they should be based on legal reasoning drawing on the evidence and arguments presented in the course of a clearly-defined and observed process. But Eugene hasn't given us any reason to believe that Wiener has rested his legal reasoning on any extraneous detail about the parties. There is a passing reference to a "framework" for a substantive analysis, but that is not enough, for reasons I addressed in my earlier comment.

Rather, Eugene (and you) seem to be saying something about the appropriate role of judges. Not only should they limit their legal reasoning in the way that I've described, but they shouldn't venture in their opinions much beyond that reasoning, or at least certainly not to matters where they make these kinds of judgments about legal issue organizations. Eugene describes this kind of thing as "troubling" but his explanation works only against a kind of legal reasoning Wiener's opinion doesn't obviously exemplify. As far as I can discern, the purported "harm" caused by Wiener's opinion has been left unexplained.

So what is the harm? Is the harm to the individuals before the court, who may find themselves publicly attacked in a way to which they cannot effectively respond? It could be, but then I'd expect Eugene's solution to be just more speech, an option it seems (from other comments here) the plaintiff has in fact chosen. Is Wiener's comment harmful because we think judges should be impartial, and his words seem to betray that impartiality? That might be a more defensible "harm," since we generally want judges who appear not to be impartial as between two parties not to adjudicate their disputes. But the "appearance of partiality" is a step removed from what we really care about (that is, partiality in adjudication). If what we really care about is whether Wiener will in the future devalue claims brought with the PLF's help, then his opinion actually helps us to know that; nothing is served by having him remain silent on his personal opinions. Of course, he shouldn't devalue such claims, but that would be an argument not about the propriety of ad hominems but about judicial partiality, which doesn't seem to be what concerns Eugene here.

It's possible that the harm might be to the "office of the court." The appearance of partiality, for example, may tend to reduce the esteem in which we hold judges. You might also argue that there is some "separation of powers" argument here, in that judges shouldn't be in the business of passing on political viewpoints, just because that's not what judges do. I don't find these harms to be very compelling. Why do we need to hold judges in any kind of esteem? Judicial power might ultimately be said to require the complicity of those called to abide by judicial decisions, and part of ensuring that compliance means judging in a way that people will accept as legitimate. That's part of why we want judges to be impartial. But judges can lose their "esteem" in this respect by hewing rigidly to specious but formalist legal reasoning just as easily as they can by openly injecting their policy or political preferences into their decision-making. (I refer you to the work of Justice Scalia.) So it seems odd to focus on Wiener's ad hominem when, as someone elsewhere in the comments has claimed, the majority opinion might itself rest on highly dubious legal reasoning.

As for the "separation of the powers" argument -- I've seen it made in the VC with respect to judicial statements about appointments or about legislation, but I've never seen it really supported. It seems to always come back to one of the arguments I've already addressed -- judges shouldn't act like politicians, because then they'll appear partial, etc.

The problem with this argument is that judges are politicians. To begin with, as I've already suggested, judicial power, in its essence, relies on judgments about what people expect judges to act like, which is to say, on essentially political judgments. Judges also have political preferences -- not just in the base sense of candidates they support, but in the sense that there are judicial doctrines they think should be supported, legal developments they wish to forestall, and the like. Judges are also on the front lines of many of our political firefights (which are increasingly being fought in the courts), so that they become political actors just by virtue of their decision-making capacity in those cases. (This case is a good example.)

So the VC protestation that there is something wrong with judges taking political sides always strikes me as both bizarre and willfully naïve. Judges just aren't legal calculators that weigh arguments and evidence objectively in reaching their legal conclusions. I'm not even sure we have good reasons to want them to act like legal calculators, either. But in any event the "harm" caused by their taking sides in the way Wiener has here strikes me as elusive, your confident assertion that "others" find it compelling notwithstanding. Again, I am reminded of the Lovitz sketch; it seems as though you find scandalous what is actually common and mundane.
4.24.2009 5:28pm
David Welker (www):
CJColucci,

I will confess to being completely unable to understand your last comment. It seemed vaguely interesting though.
4.24.2009 5:30pm
Jess:
David Welker:

I'm hearing you that the easement has long (since before plaintiff purchased the property) been a movable one. And certainly one can imagine a law the text of which would make clear to all when such movement has taken place. It is my impression, and perhaps that of others, that the OBA is not such a law. The easement did not move until a public official decided so. Surely the plaintiff has standing to challenge such a decision?

What are we missing?
4.24.2009 5:47pm
David Welker (www):
Without elaborating too much, I just want to make it clear that my views are very distinct from Simon P. While I also think that ideology does play a factor as an empirical matter when it comes to judicial decisions, I think that when judges act as politicians, they undermine their own legitimacy. The basis of judicial review, for example, lies in enforcing the Constitution, not in instead enforcing a judge's own political preferences over democratically accountable political branches of government, whether at the Federal or State level.
4.24.2009 5:49pm
JunkYardLawDog (mail):
It seems to me that the comparison to Scalia in Lawrence has it backwards. Scalia is complaining that the majority opinion followed biased political agenda in reaching its decision, as opposed to the instant case where the dissenting judge lays out his OWN (not the majority's) bias/political agenda and then sets about using that bias/political agenda as the framework for his decision process.

So Scalia saying the majority used a flawed biased decision process is hardly the same as the instant case where the dissenter states his flawed biased thinking and proceeds to use it as the basis of his dissent.

Says the "Dog"
4.24.2009 5:54pm
Dave N (mail):
David Welker,

It appears that you are saying that Ms. Severance has no standing because Texas law is against her. That seems rather results oriented. Ms. Severance's claim appears to be that there is an irrational application of Texas law that directly affects her--thus she has standing to complain.

Whether she is correct or not goes to the merits, not whether the case should be heard in the first instance.
4.24.2009 5:58pm
anon1:
Also @Welker

Under what circumstances do you think a person would have standing to challenge this law? I can't think of any scenario where, under your view, someone could bring such a law suit at all.
4.24.2009 6:10pm
Cityduck (mail):
Great post!

Let's cut through the fog here. It is wholly improper and undignified for a Judge to drop an ad hominem such as this about a group like Pacifica (or the ACLU or the NAACP Legal Defense Fund or the Sierra Club, etc.) because their is absolutely nothing wrong with using the courts to advance a cause.

This Judge acted wrongly, just as Scalia has acted improperly in making similar pronouncements.

Nothing else should be said. Everything else is just one side or the other trying to spin.
4.24.2009 6:11pm
q:

You are confused. Take away the injury to this property owner (because the easement existed before) and you still have a generalized grievance about a regime of law that this plaintiff believes to be unfavorable.

I'm not confused at all; I believe that is essentially what I said. However, whether or not there is an injury is the only dispositive point; ideology is wholly irrelevant to the analysis and is ignored when most judges consider standing.

In Lujan v. Defenders of Wildlife, I'm reasonably certain it was the ideology of the plaintiff that drove the case and not their alleged inability to see endangered animals in Sri Lanka. Whether or not the latter was an injury-in-fact was the point of debate, yet the opinions which stated it was not did not find it necessary to impute conspiratorial motives on the plaintiffs. Not even Scalia in his rejection of plaintiffs' generalized grievance standing.

I don't think it's unreasonable to think ideology drove both this case and Defenders, but I do find mentioning it as well as disparaging it inappropriate and unnecessary for standing analysis.
4.24.2009 7:26pm
Ken Arromdee:
I recognize that Ms. Severance is a real person. Nonetheless, she is a real person without standing, because the easement already existed when she bought her property. End of story. Only radical judicial activism could change that result.


By this reasoning if the law said the government gets to take your house when a meteor hits the moon, and that happens, it's a natural disaster (a meteor changing the ownership of your land) and not a government taking. That's ridiculous.
4.24.2009 7:34pm
Leo Marvin (mail):
I've seen Alan Shore argue two cases in foreign jurisdictions, Texas and Canada. Each time he was derided from the bench as a patronizing [American/Bostonian] carpetbagger. They wouldn't put it on television if it wasn't proper.
4.24.2009 8:17pm
OrinKerr:
Simon P writes:
Orin, by the same token, I could point out that your argument-style seems to rely on reducing arguments with which you disagree to strawmen and then mocking them. That's the second time you've done that here.
If you genuinely believe that is my "argument-style", I suppose that is something I cannot readily persuade you is incorrect. I will let others opine on whether that or is not my style; I do not think it is.

Simon P continues:
But it's a fair point. I rely on my comparison of the VC to the "Tales of Ribaldry" to carry the criticism. I can work it out a bit more.
Thank you for elaborating on your views. I appreciate it.

As you might expect, I find your conclusion that I am willfully naive to be quite incorrect. When I am posting about judicial practices, and specifically criticizing language in opinions, I am posting as a critic. I know that a number of law clerks and perhaps a few judges are reading -- both present and, more importantly, future -- and I want them to reflect upon the choices they are making and the judicial role that they embrace. It isn't "naive" to make arguments that criticize a particular approach on the ground that the criticized approach is common and unlikely to change. I don't pretend that my post is discovering the first-ever occasion that the criticized practice has occurred, or that my posts will magically change prevailing judicial practices. Rather, I want to offer my view as to what is proper, and explain the view and why I think it. The goal is to have a conversation and raise questions, not eradicate a way of thinking.

You are of course free to disagree, especially on the core question of what is the proper role of the judge. Many people do, and that's great: It's a hard question, and different people are going to disagree. But it seems rather strange to me to say that because we disagree, that one of us is therefore willfullly naive. Surely we can both be well-informed people acting in good faith, each stating our views and simply disagreeing with each other, without one of us dismissing the other as somehow simple-minded. Or so it seems to me, at least.

David Welker writes:
I seem to remember a similar move by Orin Kerr in being dismissive of other views when discussing the case of Pierre v. Attorney General when discussing the meaning of the word "intentional."
I seem to remember spending several hours explaining in detail why I thought the arguments were incorrect, and why even if they were correct, they did not matter to the outcome. If I was dismissive in the course of that, I sincerely apologize.
4.24.2009 9:05pm
OrinKerr:
Simon P writes:
Orin, by the same token, I could point out that your argument-style seems to rely on reducing arguments with which you disagree to strawmen and then mocking them. That's the second time you've done that here.
If you genuinely believe that is my "argument-style", I suppose that is something I cannot readily persuade you is incorrect. I will let others opine on whether that or is not my style; I do not think it is.

Simon P continues:
But it's a fair point. I rely on my comparison of the VC to the "Tales of Ribaldry" to carry the criticism. I can work it out a bit more.
Thank you for elaborating on your views. I appreciate it.

As you might expect, I find your conclusion that I am willfully naive to be quite incorrect. When I am posting about judicial practices, and specifically criticizing language in opinions, I am posting as a critic. I know that a number of law clerks and perhaps a few judges are reading -- both present and, more importantly, future -- and I want them to reflect upon the choices they are making and the judicial role that they embrace. It isn't "naive" to make arguments that criticize a particular approach on the ground that the criticized approach is common and unlikely to change. I don't pretend that my post is discovering the first-ever occasion that the criticized practice has occurred, or that my posts will magically change prevailing judicial practices. Rather, I want to offer my view as to what is proper, and explain the view and why I think it. The goal is to have a conversation and raise questions, not eradicate a way of thinking.

You are of course free to disagree, especially on the core question of what is the proper role of the judge. Many people do, and that's great: It's a hard question, and different people are going to disagree. But it seems rather strange to me to say that because we disagree, that one of us is therefore willfullly naive. Surely we can both be well-informed people acting in good faith, each stating our views and simply disagreeing with each other, without one of us dismissing the other as somehow simple-minded. Or so it seems to me, at least.

David Welker writes:
I seem to remember a similar move by Orin Kerr in being dismissive of other views when discussing the case of Pierre v. Attorney General when discussing the meaning of the word "intentional."
I seem to remember spending several hours explaining in detail why I thought the arguments were incorrect, and why even if they were correct, they did not matter to the outcome. If I was dismissive in the course of that, I sincerely apologize.
4.24.2009 9:05pm
Bob from Ohio (mail):

Actually, if you can read, it does include Judge Weiner. His dissent is obviously not on the basis of ideology.


Not "obvious" at all.

The following passage:


The real alignment between Severance and the Pacific Legal Foundation is not discernable from the record on appeal, but the real object of these Californians' Cervantian tilting at Texas's Open Beaches Act ("OBA") is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA, precisely the kind of legislation that, by its own declaration, the Foundation targets.


shows what his motivation is.

He does not like the goals of the plaintiff's lawyers so dismisses her claims.

Looks like his decision was based on views ("ideology") to me.
4.24.2009 9:11pm
Simon P:
OrinKerr wrote:

If you genuinely believe that [reductive strawmanning] is my "argument-style", I suppose that is something I cannot readily persuade you is incorrect. I will let others opine on whether that or is not my style; I do not think it is.

Orin, I'm not unreasonable. If I have some good reason to believe that my assessment is incorrect, then I'll change my mind. Stuff like this doesn't help your case, though:

But it seems rather strange to me to say that because we disagree, that one of us is therefore willfullly naive. Surely we can both be well-informed people acting in good faith, each stating our views and simply disagreeing with each other, without one of us dismissing the other as somehow simple-minded. Or so it seems to me, at least.

Your position is so reasonable! Unlike mine, which apparently makes the preposterous claim that, whenever two people disagree, one of them must be willfully naïve!

You've omitted reference to my attempt to make sense of the claim that judges shouldn't do the sort of thing that Wiener has done, which led me to conclude that there doesn't seem to be any good reason to hold that claim. You've reduced it to saying that since we disagree over whether there are good reasons to hold that claim, one of us must be willfully naïve. You then say that you think it's rather obvious that can't be the case. And so it is, because you've set yourself up against a strawman.

You have some other stuff here about this being a disagreement between how judges actually do behave and how they ought to behave. But that wasn't the point I was making. You're not going to convince judges to be less political, because they can't be. They are political actors, and they will continue to be so as long as their legitimacy and their juridical prerogatives require them to be political, which seems to me pretty well built into our system. The sort of "politics" you want to expunge from opinions is this kind of superficial, grandstanding stuff, which, for reasons I've already outlined, are no more dangerous than the commoner politicking that happens in superficially formalist opinions every day. Are you really trying to sent the message to future clerks that they lie about what their judges are doing?

But Orin, if you would like to proffer some defense of your view of the "appropriate role of judges," please feel free to do so. I haven't seen any real argument on the VC, in this post or otherwise, justifying the claim that judges shouldn't weigh in on political matters that doesn't ultimately seem to derive from disagreement with the political persuasion of the judge. I've attempted to make sense of that claim on my own, but I've obviously failed to reach the same conclusion you do. So maybe there's some other reason you're holding in reserve that can make sense of it all and dispel finally my assessment that you're just mistaken about the way judges do, can, or ought to behave. Like I said, I'm not unreasonable; I'd love to see it.
4.24.2009 10:08pm
David Welker (www):

I seem to remember spending several hours explaining in detail why I thought the arguments were incorrect, and why even if they were correct, they did not matter to the outcome. If I was dismissive in the course of that, I sincerely apologize.


First of all, I want to say that I appreciate your posts and I enjoy your arguments.

I think your dismissive of one person who was arguing (I think very incorrectly) that intention included a case where someone stabbed someone but tried to avoid their organs or some such thing. You even played the, if someone argued this in a 1L criminal law class, they would get a bad grade card.

You probably were right to be dismissive in this context, because the hypothetical was that the person was even trying to avoid the major organs in stabbing someone and actively preferred that the person live. I think that if someone actively wants the opposite result of what occurs (even if what occurs is inevitable upon reflection) you and I would agree that is not intentionality.

A final point. I think whether something is dismissive is often a matter of perspective. I know I have personally been accused of being dismissive when I never had any such intent.

I also have been interpreted as being more critical than I intended. As here. =) Communication is hard. There is no way around that.
4.24.2009 10:17pm
David Welker (www):

I don't think it's unreasonable to think ideology drove both this case and Defenders, but I do find mentioning it as well as disparaging it inappropriate and unnecessary for standing analysis.


First of all, we both agree that this point was not strictly necessary for the dissenting opinion.

However, I don't think that mentioning this particular truth (that the case was ideologically motivated) is "disparaging." That is because I don't think that organizations like the Pacific Legal Foundation or the Defenders of Wildlife have anything to apologize for at all.

I also think it was reasonable to mention, because avoiding judicial entanglement in purely ideological disputes is a reason that the rule against generalized grievances exists.
4.24.2009 10:22pm
CJColucci:
David Welker:

CJColucci,

I will confess to being completely unable to understand your last comment. It seemed vaguely interesting though.


Ouch! But I can see your point. I was trying to avoid offending tender sensibilities and ended up being obscure. I should know better.
To be clearer, and perhaps more offensive about it, Orin had a point insofar as he suggested that saying: "Don't be silly. This happens all the time. No big deal. Get over it" isn't an argument likely to convince people who are inclined to be silly, don't seem to notice that it happens all the time, think it's a big deal, and can't get over it. But then it's hardly fair to insist on a well-formed argument in response to "Well that's just inappropriate." There's no arguing over matters of taste.
4.24.2009 10:48pm
David M. Nieporent (www):
I recognize that Ms. Severance is a real person. Nonetheless, she is a real person without standing, because the easement already existed when she bought her property. End of story. Only radical judicial activism could change that result.
For a lawyer, you don't seem to have a very strong grasp of the concept of standing. The alleged fact that the easement already existed would not mean that she didn't have standing; it would mean that she loses.

Standing is a separate inquiry from the merits of one's position.
4.24.2009 11:06pm
OrinKerr:
Smon P,

I've argued this point in blog posts and comments many times, criticizing judges on both sides (and usually when I actually agreed with the judicial comments I was criticizing).

In any event, my own view is that judges can act as political actors, but only in the same way that citizens can cheat on their income taxes. I think it is misguided to make some generic comment that judges "are" political actors, and that's just the way it is. To me, it is much like saying that people cheat on their taxes, and that's just the way it is and the system is built that way (and that it is naive to criticize people for cheating on their taxes).

I would hold up the Judge I clerked for on the court of appeals as a good example. Politics didn't enter into the picture with Judge Garth: He read the cases and followed them. Perhaps that approach is rare, but I'm not sure how the rarity of the approach makes a difference.
4.24.2009 11:20pm
David Welker (www):
David M. Nieporent,

Well, since you ventured forth to opine about my understanding, I will venture forth and straightforwardly assert that you are the one who is confused.

In fact, when it comes to the issue of standing, there is not always an absolute separation between what are artificially known as the "merits" and standing?

Why? Because standing requires injury. But injury and damages are also an element of pretty much any cause of action. Imagine that: an inquiry into standing may in fact explore some of the same issues that an inquiry into the merits would. I am sorry that this is such a new issue for you. I would think that since you were a lawyer, you would be able to grasp this elementary issue. But, that would be hoping for too much, apparently.

FYI, in Lujan v. Defenders of Wildlife, Justice Scalia laid out what most be shown in each stage of the litigation:


At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we "presum[e] that general allegations embrace those specific facts that are necessary to support the claim," National Wildlife Federation, supra, at 889. In response to a summary judgment motion, however, the plaintiff can no longer rest on such "mere allegations," but must "set forth" by affidavit or other evidence "specific facts," Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be "supported adequately by the evidence adduced at trial," Gladstone, supra, at 115, n. 31


Obviously, lack of injury can also be shown as a matter of law.

Oh, something else should be mentioned. Edith Jones agrees with me and not you that inquiry into this issue is appropriate when considering the issue of standing. In the section of the opinion labeled Standing, she wrote the following:


B. Standing
The Officials contend that Severance lacks standing because any taking or seizure took place before she acquired the properties at issue. The Officials No. 07-20409 assert, and Severance disputes, that the easement attached to her properties no later than 1999, well before she bought them.
In the case of an alleged physical taking, like this one, "any award goes 5 to the owner at the time of the taking, and [ ] the right to compensation is not passed to a subsequent purchaser." Palazzolo v. Rhode Island, 533 U.S. 606, 628, 121 S. Ct. 2448, 2463 (2001). However, even if the easement had attached to some portion of Severance's properties before the purchase, the vegetation line shifted farther inland after the purchase. Because the State seeks to impose an easement on a different (and larger) segment of her properties than was covered at the time of her purchase, Severance has suffered an injury distinct from that of the previous owner.


So, who is right about this issue, you or me and Judge Edith Jones? I think the answer is obvious. Maybe you should, you know, actually know what you are talking about before you offer an opinion and especially before you attack someone else for supposed not knowing what they are talking about. (And for the sake of saying something positive, I should mention despite your behavior in this instance, I have seen value, on occasion, in some arguments you have made on this blog.)
4.25.2009 12:01am
M. Simon (mail) (www):
thinly veiled Libertarian crusade

Yeah. What we want are thickly veiled crusades. Especially of the Libertarian kind.
4.25.2009 12:54am
Ben S. (mail):
It is totally disingenuous to think that the dissent's "context" comments factored into a legal analysis of standing.

Whether standing existed or not depends entirely on whether the taking Severance suffered existed before or after she took the property. This is because, if it occurred before, the claim was the previous owner's to bring, not hers. (This is a peculiar but fundamental aspect of takings jurisprudence.)

Thus, it should be very clear that the takings determination could be made solely on the basis of a temporal and character analysis of the restriction on Severance's property. These are objective facts and, a such, are not affected by the motives of the litigant and/or her attorneys, no matter how genuine or politically motivated. This renders any discussion of her or her firm's motives totally superfluous. And if such a discussion is superfluous, why mention it at all unless it is to express personal animus of the sort that is unbecoming of a judge?

In other words, Wiener's allegations either (1) improperly factored into his legal analysis, or (2) if not part of his legal analysis, were mentioned only to smear the plaintiff and her attorney. (Of course, even if the latter is true, it will still support the (I think reasonable) inference that the former occurred.) Either way, Judge Wiener departed from objective judicial decisionmaking and I think that is Prof. Volokh's point.
4.25.2009 1:22am
David Welker (www):
That is an interesting point M. Simon. I wonder what the origins are of the phrase "thinly veiled" to refer to a crusade or a threat.
4.25.2009 1:36am
David Welker (www):
Ben S.

Interesting theory. But, the Pacific Legal Foundation admits to being a libertarian advocacy organization. So, I don't see pointing out that fact as being a "smear." I am sure the Pacific Legal Foundation is perfectly proud of what it is and does. Second, as has been noted, the courts are not in the business of adjudicating purely ideological generalized grievances. It seems that the judge thought that this case fit that description. So, he his reinforcing his legal reasoning, which appears below the section entitled CONTEXT, with the suggestion that, by the way, this is precisely the sort of purely ideological case that should not be heard under the doctrine of standing. Of course, the legal reasoning can stand on its own without this context, but I think the context is in fact helpful to understanding what the case is about.
4.25.2009 1:43am
NaG (mail):
Welker: So if standing in Heller doesn't bother you, and it was clear from the start that the plaintiffs in that suit were brought together solely for the ideological goal of overturning the D.C. gun ban and pushing a pro-2d Amendment agenda, then there should be absolutely no reason why you would object to this case. They are absolutely identical situations.
4.25.2009 9:06am
Mystery Guest:
Judge Jacques Wiener's dissent is truly dumb and obtuse. And his writing is turgid and pretentious. No wonder he is referred to as the Souter of the Fifth Circuit.

An ideological motivation for a suit doesn't prevent a plaintiff from having standing (not that the plaintiff in this case admits to any such motivation -- quite the opposite, in a comment she posted above).

Many ACLU suits involve ideological motivations and minimal financial injury -- rather than the potential loss of a home and/or property, as in this case.

Heck, even Rosa Parks's case was ideological. She was schooled by the Highlander School in civil disobedience. They trained her precisely so that she could get arrested and thereby challenge segregation.

No one suggested that she lacked standing, merely because her suit was part of a political crusade to end segregation.
4.25.2009 11:23am
David Welker (www):

Judge Jacques Wiener's dissent is truly dumb and obtuse.


Or maybe you are the one that is "truly dumb and obtuse" if you are reading anyone to assert that the existence of an ideological motivation renders a suit nonjusticiable.

Just a thought.
4.25.2009 11:52am
David M. Nieporent (www):
So, who is right about this issue, you or me and Judge Edith Jones? I think the answer is obvious. Maybe you should, you know, actually know what you are talking about before you offer an opinion and especially before you attack someone else for supposed not knowing what they are talking about. (And for the sake of saying something positive, I should mention despite your behavior in this instance, I have seen value, on occasion, in some arguments you have made on this blog.)
Since you argued that the plaintiff didn't have standing, and Edith Jones disagreed, it seems rather odd for you to try to conscript her into your cause.
4.25.2009 5:38pm
David Welker:

Since you argued that the plaintiff didn't have standing, and Edith Jones disagreed, it seems rather odd for you to try to conscript her into your cause.


Does it seem odd?

Well, even if you think it is odd, she definitely illustrates my point and not yours regarding what sort of analysis is appropriate when considering the issue of standing. I could have also cited the analysis in the dissent to make the same point.
4.25.2009 6:25pm
ReaderY:
This seems out of line for both this case and the general case. After all, First Amendment rights including the right to petition the government for redress of grievances permit organizations to support lawsuits consistant with their ideology even if I think those lawsuits have no merit.

There may be an exception to the rule. For example, suppose a rich and powerful organization files hundreds of Establishment Clause cases for and against borderline government religious activities, and the other side points out that throughout its history, the organization has only sued to strike down prayers and exhibits that don't mention "Jesus" and has consistently paid to defend government activity that does. (or vice versa). And suppose the organization explicitly characterizes its mission as using litigation to bring Jesus into (or take Jesus out of) government. Suppose, moreover, that its resources were vastly greater than most other potential litigants to the extent that it effectively cornered the market on this type of legislation.

It seems to me one could argue that even if each and every case the organization selects has individual merit, by its consistent selection of cases based on a strictly sectarian agenda, and using the nuisance value of litigation to induce others to do its will, the organization (if sufficiently powerful and its activities sufficiently widespread) would be introducing bias into the federal litigation process with the express intent and effect of establishing religion.

The DeStephano (New Haven Firefighter) case also strikes as having implications that might potentially include a need to csometimes onsider the motive of a litigant in determining whether a government action in settlement of litigation can itself be a discriminatory action.

These hypotheticals suggest to me that this may not be a rule without exceptions; that sometimes the general motivation of an advocay organization that sponsors litigation may in fact be relevant to how a particular case should be decided. This is clearly not such a case, however. I think the plaintiff should lose, but agree the concurring language was not helpful or judicially appropriate.
4.26.2009 1:27pm
ReaderY:
Sorry, the dissenting language
4.26.2009 1:29pm
Gonzer Maven (mail):
To me, this has been an entertaining exchange, but I think it may benefit from somebody (that would be me) reminding one and all how this ideological war came about. It was in 1972 that the Citizens Advisory Council to the CEQ (headed by Laurance Rockefeller, and composed of some big-time bankers, Rouse (the developer), and Pete Wilson (then Republican Mayor of San Diego) came up with the recommendation that thenceforth the right to develop land should no longer be a private but a public one. Their motivation was that in order to protect the environment, severe property regulations whould have to be imposed, and in order to avoid constitutional claims when those regulations got to be confiscatory, the Supreme Court should overrule Pennsylvania Coal Co. v. Mahon, and abolish the concept of regulatory taking. Without saying so, they suggested that we adopt the essential provisions of the British Town &Country Planning Act of 1947 in which the Atlee Labor-Socialist government decreed that the right to develop land (i.e. to put it to new uses) would cease to be a private right and become subject to government "planning permission." To further that agenda here, a book was commissioned and written -- Bosselman, Callies and Banta, THE TAKING ISSUE. It was candidly polemical and urged SCOTUS to overrule Pennsylvania Coal. People supporing that view were dubbed "police power hawks" by Professor Daniel Mandelker, himself no mean "hawk." The book was printed by the Government Printing Office and sold for nominal amounts. It was widely distrbuted, and made quite a splash at the time. But it failed in its mission. In Keystone Bituminous v. DeBenedictis, SCOTUS came close but in the end upheld Pennsylvania Coal, even if Holmes, were he to rise from the deam, might have problems recognizing his handiwork.

And it was in response to that movement that conservative-libertarians mounted a counterattack through the likes of PLF, the Institute for Justice, etc., following the precedent established by the ACLU, NAACP, the Natural Resources Defense Fund, Sierra Club, and Community Counsel, to name a few. That being the background, I think it was just plain silly of Judge Wiener to launch his attack on people who would use the courts to further ideological agendas. The courts invited that phenomenon when they went into policy making on a large scale, and it ill behooves judges, whether Wiener or Scalia, to complain about it.
4.26.2009 2:15pm

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