Why do so many non-lawyers hate lawyers? That question opens a classic 1930 book—Law and the Modern Mind—by legal scholar (and later federal appeals court judge) Jerome Frank. The answer, Frank persuasively argued, lies in a popular misunderstanding about the root of law’s complexity. Laypeople believe that the law is clear and straightforward but that lawyers make it seem complicated in order to earn legal fees. The public view lawyers, Frank wrote, as “tricksters and quibblers.”
Frank argued that the lay attitude towards law is naïve. Most of the law’s complexity results from necessity. Life in a modern society is complicated; values we cherish frequently conflict with one another; in order to keep up, the law must be complicated too. We could have simple clear rules only by sacrificing justice.
Frank’s observation was and remains astute. And yet it is only true in general. Today, as in the first third of the last century, there are areas where the law is needlessly complex—where complexity undercuts rather than serves justice. A case now pending before the U.S. Supreme Court can serve as a useful entry point into the needless complexity of the law governing when lawsuits may be brought in federal court.
The Border Wall Case
Despite Donald Trump’s 2016 campaign promises and subsequent lies, he never built a wall at the southern border, nor did Mexico pay a single peso for the 47 miles’ worth of new primary fencing Trump’s administration erected or for the several hundred miles of pre-existing fencing that it rebuilt. Trump did, however, manage to direct billions of dollars of U.S. taxpayer money to wall construction, some of it allocated for fencing by Congress but additional billions redirected by Trump under dubious legal authority. How dubious? The U.S. Court of Appeals for the Ninth Circuit ruled last year that Trump acted unlawfully when he declared an emergency to take funds Congress appropriated for other purposes to spend on his wall.
Trump’s Justice Department appealed to the U.S. Supreme Court, arguing that the reallocation was lawful and that, in any event, the plaintiffs—the Sierra Club and a coalition of border community organizations—lack a right even to sue to object to the case. Oral argument is scheduled for later this month, but it almost certainly will not happen. On his first day in office, President Biden issued an executive order renouncing Trump’s bogus emergency and the wall itself. A change in course does not end a case where a plaintiff seeks damages for past wrongs, but where, as in Trump v. Sierra Club, the only relief sought is an injunction against ongoing and future wrongs, a new administration’s new policy will typically result in a dismissal on mootness grounds. Thus, earlier this week and with the plaintiffs’ consent, the Department of Justice asked the Court to hold the case in abeyance.
Despite the high likelihood that the Supreme Court will not hear Trump v. Sierra Club, the case usefully illustrates the caveat to Jerome Frank’s admonition. Sometimes the law really is needlessly complicated. There can be legitimate procedural reasons why courts should not decide the substance of a legal dispute. However, the sheer number and complexity of procedural headings under which courts can dismiss a case can make even getting to the merits like traversing a minefield.
Some of the Mines in the Field
Trump v. Sierra Club is an eye-opening example. Casual and even many attentive readers of this column likely saw my description of the Trump administration’s argument in the case—that the plaintiffs “lack a right even to sue”—and thought that the administration must have contended the plaintiffs lack standing. However, that’s not true. Admittedly, the Supreme Court has built an entire body of gatekeeping law limiting legal standing on the thin reed of the Constitution’s Article III, which says that federal courts can hear only “cases” and “controversies,” but the plaintiffs in the border wall case had legal standing; they were, to use the relevant jargon, likely to suffer imminent concrete and particularized injuries directly traceable to the allegedly unlawful funding of the border wall—injuries that would be redressable by a favorable ruling.
While not exactly conceding standing, the Trump administration brief in the border wall case raised two other objections. First, it claimed that that the statute on which the plaintiffs relied does not give them a cause of action—a technical legal term for a right to sue for alleged legal violations that converts an injury that confers standing into one for which the law also provides a judicial remedy. Second, the former administration’s brief said that the plaintiffs do not fall within the “zone of interests” protected by the statute.
Both of those contentions are wrong, as argued in an amicus brief that I and six other scholars of federal courts filed in the border wall case. We explained that the government might be correct if the plaintiffs were claiming a statutory right to sue. However, they brought an equitable action of the sort that the Court has long recognized and which renders the zone-of-interest test irrelevant.
Yet while the government’s opening brief in the border wall case misapplied the cause-of-action and zone-of-interest requirements, those are complicated gatekeeping doctrines that can bar suits in appropriate cases. Indeed, even the equitable cause of action that our brief identified as the real basis for the border-wall suit has been the subject of contestation. For example, in a 2015 Supreme Court case, there was unanimous agreement that such a cause of action would be available by default, but the Justices split 5-4 over whether language in the federal Medicaid statute overrode that default in the dispute before them.
The list of gatekeeping doctrines—each with its own layers of sub-tests and sub-sub-tests—is long. It includes:
- Article III standing
- Related timing doctrines of ripeness and mootness
- Article III prohibition on so-called advisory opinions
- “Prudential” standing limits like the prohibition on third-party standing
- Prohibition against adjudication of “political questions”
- About half a dozen “abstention” doctrines
- Limited statutory authorization of federal court subject matter jurisdiction
- Constitutional limits on federal court subject matter jurisdiction
- Constitutional limits on personal jurisdiction
- Statutory venue limits
- Forum non conveniens limits
- Statutes of limitations and other time limits
- Cause-of-action requirement
- Zone-of-interest test
- Exhaustion of remedies in administrative appeals, prisoner suits, and elsewhere
- Sovereign immunity (and its exceptions) in suits against the government
- Qualified immunity in suits against government officers
- Equitable doctrines like “unclean hands” and laches that may bar relief
- Numerous subject-specific procedural limits, such as those on habeas corpus
I do not mean to imply that all or even most of the obstacles to relief at which the foregoing list gestures are wrongheaded. Many of them serve sensible policy goals. But taken together, they are a trap for the unwary.
Procedural Simplification Should Be a Shared Goal
It would not be possible to eliminate all of the complexity one finds in federal court gatekeeping law (and similar limits in most state courts). Jerome Frank was right that the complexity of life entails substantial complexity in law. But even if the procedural law governing who can sue and when cannot be made simple, it surely can be made simpler.
At a time when everything seems like a partisan issue, there ought to be bipartisan consensus for procedural simplification and clarification. Liberals want simpler clearer rules because they tend to favor court access for civil rights plaintiffs and others injured by powerful public and private actors. Conservatives who tend to favor rules over open-ended standards also favor simplicity and clarity. Thus, Justice Clarence Thomas pithily wrote in a concurrence in a 2005 ruling: “Jurisdictional rules should be clear.” To the extent possible, so should all procedural rules.
To be sure, simplifying the law will not necessarily clarify it. Indeed, the two goals often work at cross-purposes. To clarify the law requires specifying the outcome in a great many different circumstances, which will often require a detailed, that is, long and complex, list of rules, not a short simple rule or standard.
Yet what we have now is the worst of both. Procedural gatekeeping law is highly complex and often profoundly unclear. That combination works out well for lawyers who are procedural specialists leveraging their expertise for hefty fees, but it works out poorly for everyone else—and ultimately even for the legal profession itself. Needlessly complex and opaque court gatekeeping doctrines contribute to our image as a gaggle of tricksters and quibblers.