Morning Must-Read: Nicholas Bagley: Cleaning Up the Standing Mess in King

Nicholas Bagley: Cleaning up the standing mess in King: “Difficult questions about standing and the viability of the lawsuit…

…The King lawyers have an ethical obligation[:]… ‘[w]hen a development after this Court grants certiorari… could have the effect of depriving the Court of jurisdiction due to the absence of a continuing case or controversy, that development should be called to the attention of the Court without delay.’… Without standing, the federal courts lack jurisdiction…. When standing problems become apparent after full briefing, the Court sometimes chooses to dismiss cases as improvidently granted–to ‘DIG’ them….

There’s a better way… call for… plaintiffs’ lawyers to explain the factual basis for their clients’ standing. Ordering such briefing wouldn’t be unprecedented: in a case decided in 2000, for example, the Court ordered supplemental briefing on standing the day after oral argument. And such briefs often address questions pertaining to mootness…. Doing nothing in the face of continued silence from the plaintiffs is no longer a tenable approach.

February 17, 2015

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