Popular on eTradeWire


Similar on eTradeWire

Obscure Doctrine and Poor Planning Save Obamacare

eTradeWire News/10631433
Attorneys Often Pay Insufficient Attention to Legal Standing

WASHINGTON - eTradeWire -- The Supreme Court refused to strike down Obamacare.  Instead, it upheld the controversial law, and ducked the main legal issues, by the expedient of holding that the plaintiffs lack legal standing to bring the law suit in the first place.

The need to properly allege and establish all of the elements of legal standing is crucial to litigating major constitutional and other legal issues, says public interest law professor John Banzhaf, whose law students - in the famous U.S. v. Students Challenging Regulatory Agency Procedures [SCRAP] Supreme Court case - overcame enormous obstacles to establish standing for ordinary citizens to challenge environmental harm, even if it affects virtually everyone living anywhere in the country.

The law students did so following an earlier Supreme Court decision holding, in Sierra Club v. Morton, that the Sierra Club did not have standing to challenge impending environmental harm to Mineral King Valley in California' a ruling which triggered wide spread concerns about the ability to litigate environmental issues in court

More on eTradeWire News
Banzhaf also established standing to force the attorney general to seek the appointment of an independent counsel, and administrative standing to challenge discrimination against women, Blacks, the deaf, Jews, and others.

In teaching the law of standing to his law students, Banzhaf analyzes earlier cases in which the Supreme Court had dismissed legal challenges based upon a holding that the plaintiffs lacked legal standing.

For example, Simon v. Eastern Kentucky Welf. Rights. Org., several low-income individuals, and organizations representing them, challenged an IRS ruling which gave favorable tax treatment to hospitals even if they did not serve indigents to the extent of the hospitals' financial ability.  Although some patients had in fact been denied care, the challenge was dismissed because the Court held that there was no standing.

Prof. Banzhaf shows how better and more comprehensive pleading, a better selection of parties, and other legal tactics would likely have changed the outcome, and allowed low-income individuals and minorities to achieve legal redress, or at least had the Court address their underling substantive legal claims.

More on eTradeWire News
He notes, for example, in the SCRAP case, the legal complaint contained several pages of allegations and arguments to support the law students unprecedented claim to have legal standing, and that they also had several additional backup legal strategies if those arguments were not successful.

Plaintiffs' attorneys too often give short shrift to the issue of standing, and the results can be devastating.

In the Obamacare case, he says, it's hard to believe that somewhere in the complex medical scheme there isn't at least one potential plaintiff with real harm fairly traceable to defendants' conduct.

http://banzhaf.net/   jbanzhaf3ATgmail.com   @profbanzhaf

Contact
GW LAW
***@gmail.com


Source: Public Interest Law Professor John Banzhaf
Filed Under: Legal

Show All News | Report Violation

0 Comments