The Laboratorium
February 2004

New Lows in Grocery Competency

I went grocery-shopping today. The checkout clerk picked up the head of garlic and looked at it quizzically. "What's this called?" she asked me. "Garlic," I said, and she nodded, as though it were a new and exotic name, like carambola or durian, for her to memorize. When she got to the ginger, we played the game all over again.

At least she didn't ask me what the bananas were.

Big Snake

Been doing some Python programming. Nice language, incredibly easy to learn. Haven't played with too many complex features, but it's friendly, reasonably intuitive, does what I expect it to without undue contortion, and seems to be pretty easy to debug.

Wrapping Up Standing

First, I got my hands on the actual briefs from the San Francisco cases. As we guessed, California's expansive citizen-suit standing rules let the conservative groups sue to prevent the unlawful expenditure of government funds. (But query, as some professors are given to saying -- if the couples were reimbursing the city for all of its expenses, would standing still exist?)

Second, Steven pointed out a couple of techniques Congress could use to get around standing hurdles to the enforcement of the FMA -- most notably by suing the states itself or by offering bribes (techically "qui tam" actions) for people successfully bringing such suits, to be collected out of the treasuries of the states sued.

But that, of course, begs the next question: does the FMA contain an implicit repeal of state sovereign immunity?

More Standing Trouble

In fact, the more that I think about it, the uglier things get. Posit, for a moment, that state standing law is more expansive than federal standing law, or can be. My sense is that this is an uncontested proposition -- witness California's expansive consumer standing under 17200 (the deceptive marketing statute that brought us Nike v. Kasky). But now consider what happens when you try to take a case from state court out to federal court and thereby lose standing.

The first sitation where this would happen would be in diversity jurisdiction, which isn't too much of a theoretical problem, since the state courts remain open for business. Plaintiff and defendant are stuck in state court, but that's not intrinsically an evil, as the various periodic proposals to abolish diversity jurisdiction remind us.

More serious, though, is the problem of Supreme Court review of judgments from state courts. There's caselaw -- I've asked around on this, and looked through Hart and Weschler -- that a plaintiff who lacks federal standing but loses in state court does not gain federal standing simply by losing. Even where there's a constitutional issue at stake, unless a concrete interest of yours is threatened, you don't have federal standing.

The converse bootstrapping trick, note, does work. If I don't have federal standing to sue you, but I do have state standing, and I sue you in state court and win, you do have standing to go to federal court to see redress on the merits. The concrete judgment against you, if it threatens, say, a liberty or property interest of yours, does give you standing to invoke the federal court system.

What this means, if I skim my cases right, is that if these San Franciso cases go up to the California Supreme Court, there will be a standing asymmetry involved. If the gay couples lose at the California Supreme Court, they'll have standing to appeal to the United States Supreme Court. But if the conservative groups lose in California, they're stuck there, and can't appeal.

Now, at the moment, this issue is largely academic, in that what's involved is the interpretation and application of California (and local) constitutional and statutory law. There aren't federal questions involved, nor are there Constitutional ones. Leaving aside the issue of the citizenship of the parties (one of the conservative groups is from Arizona, I believe), the federal courts dont't have subject matter jurisdiction over these suits, so the issue will stop at the California Supreme Court.

But now, suppose, that these cases are coming up in Massachusetts. And suppose that the Federal Marriage Amendment has been passed, with its language about the "legal incidents" of marriage. Now, finally, suppose that the Massachusetts Supreme Judicial Court holds that the FMA does not preclude its holding that the Massachusetts Constitution requires granting some particular right to gay couples as well as to straight. If the conservative groups suing to void the marriage licenses think that the SJC has misinterpreted the FMA, they would appear to be without, so to speak, a leg to stand on.

This, to me, seems like the standing system going haywire. I can't see this result actually, well, standing. But I'm scratching my head trying to think how the Supremes would deal with it in practice. My favorite perverse idea is that they would read the FMA to contain an implicit repeal of the Article III standing doctrine as regards citizen suits to enforce the FMA against states. But this would be a theoretical can of worms, given that it would seemingly allow a similar reading of an implicit standing extension for every other amendment.

Or, perhaps, they might try to reshape standing doctrine in a more sensible way. Now, that's a good project, but in a federal system, this puzzle will arise whenever state standing rules are more expansive than federal ones. That creates a pressure either to hear these cases in federal court (which destroys the idea of a unified national constitutional standing doctrine), or to leave federal "rights" without remedies, under certain circumstances.

But that's life under federalism, I suppose.

Over or Under Standing

It's been hard to miss the brouhaha over San Francisco's same-sex marriages, especially now that various conservative groups are suing to annul the marriages and to enjoin the city from issuing any more same-sex marriage licenses.

My question is this: how is it that anyone has standing to sue the city? I can't see any legally-cognizable injury that these groups have suffered as a result of the marriages. Their "interest" is presumably that California law be properly enforced. But -- at least in federal court -- the interest that all citizens share in having law properly enforced won't even get you in the door. That sort of thing is supposed to be the province of the other branches of government. No one, for example, can sue the IRS for failing properly to enforce the tax laws against particular taxpayers.

From this, I conclude that federal standing law and state standing law must be two very different critters. But it's not like I know this, nor like any of the friends I've asked knows. Just another thing they don't teach us here at the University of You Suck Law School, where the only thing that matters is federal law and the actions of the federal courts.

Direct-Mail Prophecies

I keep getting ads in the mail for moving companies and senior-citizen discounts. Do these people know something I don't?

Integer Calculators

I think we're going about this idea of "teaching calculators" all wrong. Instead of shoving hyper-featured programmable graphical calulators at older kids, we should be shoving low-featured simple calculators at younger kids. And we need to make one crucial change to them: they should do integer arithmetic, rather than floating-point.

Three out of the basic four functions are easy. The integers are closed under addition, subtraction, and multiplcation. In case of underflow or overflow of the display, it should change to read "too big" or "too small." As for division, the display should show both the exact integer quotient and the remainder. I'd also take off the memory buttons and the square root button: they're just unnecessary distraction at the early stages. (I might also be convinced that you should take away the ability to chain operations together. Teaching kids to punch in the operation they want to do, read off the result, write it down, and then punch in the next operation would probably lead to good habits in the long run).

And there you go. Once kids get the most basic concepts behind arithmetic, it's safe to introduce the calculators. There are no complicated frightening big decimals that fill the display with repeating digits. Instead, you have a simple-to-use device that complements their budding numerical intuition, instead of supplanting it with something confusing and messy.

Larry Solum Makes the Wrong Point

I respect Larry Solum's Legal Theory Blog for the work it does pulling together a great deal of information about developments in legal theory. Except for the endless jabbering about the latest backs-and-forth about originalism, I find it a valuable resource and a helpful guide to the flood of work out there.

I wish I could train myself not to read his editorial comments, but unfortunately, he interweaves them quite closely with his summaries and explanations. Unfortunately often, there's something in them that sets my teeth on edge. Not because it's unfortunately political, but becuse it's political and unsupported.

Take, as my prime example, his post today about storage capacity on his university's server. Larry is constantly running up against his 20 MB quota, since he gets 2-5 MB of email a day (mostly attachments). He's offered to pay for more, but that's not an option. Putting these two facts together, he goes off on a rant about "command and control," concluding: "When a private good is made free, the piper must be paid."

I don't even know where to start.

(Continued . . .)

All Quiet on the Eastern Front

Yes, things have been quiet here lately. I'm in the process of (a) gearing up to change hosting providers and (b) gearing up to switch blogging software. Not to mention all of the other stuff keeping me busy.

Good busy, though.