Issue 4

Justiciability and Remedies–And Their Connections to Substantive Rights

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

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

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

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

Taking Information Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere

Contract law attempts in various ways to regulate the information that contracting parties exchange. However, most contract law doctrines (and most contract law scholars) have yet to come to grips with the practical issues involved in regulating information. For instance, the disclosure of information can produce costs as well as benefits, by distracting parties from other, more important information; so it is often hard to decide which information should have been disclosed in any given case. Similar costs and benefits are often involved even in cases involving false statements (misrepresentations), where liability might seem less controversial.

While these issues are underappreciated in contract law, they are much more familiar in federal consumer protection law, especially in cases involving false advertising; and they are beginning to be recognized in products liability cases involving the duty to warn. This Article suggests various ways to improve contract law’s handling of misrepresentation and nondisclosure, all of which involve closer attention to the relevant costs and benefits.

“The Indispensable Basis of Democracy”: American Catholicism, the Church-State Debate, and the Soul of American Liberalism, 1920-1929

Several recent works of scholarship explore how Establishment Clause jurisprudence has been shaped by broader political debates over the role of religion in public life. This literature focuses on the politics of anti-Catholicism, particularly during the early years of Establishment Clause jurisprudence in the1940s and 1950s. While not questioning the centrality of this period to the historical narrative, this Note argues that the political contest over church and state took shape in an earlier debate over the compatibility of Catholicism and the Constitution during the 1920s. The Church’s response to the anti-Catholicism of this period was of particular importance. Catholic apologists actively challenged the widespread argument that Catholicism could not be reconciled with a democratic liberal political order. In fact, Catholics not only defended the doctrinal compatibility of Catholic social thought and the constitutional separation of church and state. They argued that Catholicism was ideally suited to preserving the moral foundations of the free society. Far from imperiling American democracy, Catholicism was, in the words of the Church’s leading social theorist, “The Indispensable Basis of Democracy.” Thus, rather than aiming to depoliticize the church-state fracas of the 1920s, American Catholics drove the issue ever more fully into the realm of politics and culture. In the process, Catholics developed a worldview that now stands at the heart of Establishment Clause politics.

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