06-25-2003, 11:17 PM
I wish it were so easy. However, it is not, because of the legal requirement of "standing."
As a lawyer, I can advocate for changes in laws in public forums to try to influence the legislature. I can argue that law X is bad by writing a law review article, or by making a presentation at the American Bar Association, for example. That kind of advocacy -- which non-lawyers can do as well -- is intended to make legislators want to clean up a law. If it's compelling enough, and if the legislators have time, they might do so.
However, I can NOT go into a court and suggest that the judge invalidate or modify a law unless I have a client who has been injured by that law (at least, not in Federal court, it varies state to state, but most states have similar standing requirements).
For example, suppose that a state has a law saying that it is illegal to chew bubble gum. Suppose that all parties agree that this law is silly and outdated. However, the legislature, for whatever reason (it's too busy balancing the budget, for example) has not repealed the bubble gum law.
I cannot go to court and ask a judge to strike down that law -- unless I represent someone who has been prosecuted under that law. I can't just walk into court and say "Your Honor, this law should be invalidated." I must be able to say "Your Honor, I represent Occhidiangela, who has been prosecuted under this law, and our defense is that the law should be invalidated." (The defense obviously wouldn't be that short and undetailed, but that would be the argument).
This applies even to clearly unconstitutional laws. For example, if the law in question prohibited blacks from chewing bubble gum, it would pretty clearly violate the Fourteenth Amendment (unless there was a compelling state interest, which we will assume there was not). I still can't ask a court to strike it down unless I am representing a black person who is being prosecuted under that law.
I'm using a criminal law example here. There are also civil law provisions which courts can strike down. Again, they must be raised by a party harmed by the law. For example, another clearly unconstitutional law would be a statute of limitations on breach-of-contract claims which was 2 years for whites but 3 years for blacks. Clearly unconstitutional? Yes. But I can only ask a court to strike it down if I am representing a white who wants to bring a breach-of-contract claim after 2 years (but before 3).
(Again -- just to repeat -- standing is a federal doctrine and a state doctrine. The discussion above is about the federal standing standard, but many states have similar standards).
Standing is created by the grant of power to courts under Article III which gives them power over "cases and controversies." The Supreme Court has ruled that this requires an actual harmed party.
(There are exceptions to standing doctrine, and lots of little rules, but that would be really getting into a first-year civil procedure course, which I don't have time to lay out, and which you probably didn't want to read anyway :P If you are interested in standing doctrine, there are a lot of resources out there).
(Note that standing is also one of the more controversial doctrines in application -- judges are often (sometimes accurately, I would say) accused of ducking bigger issues by dismissing a case on standing grounds).
As a lawyer, I can advocate for changes in laws in public forums to try to influence the legislature. I can argue that law X is bad by writing a law review article, or by making a presentation at the American Bar Association, for example. That kind of advocacy -- which non-lawyers can do as well -- is intended to make legislators want to clean up a law. If it's compelling enough, and if the legislators have time, they might do so.
However, I can NOT go into a court and suggest that the judge invalidate or modify a law unless I have a client who has been injured by that law (at least, not in Federal court, it varies state to state, but most states have similar standing requirements).
For example, suppose that a state has a law saying that it is illegal to chew bubble gum. Suppose that all parties agree that this law is silly and outdated. However, the legislature, for whatever reason (it's too busy balancing the budget, for example) has not repealed the bubble gum law.
I cannot go to court and ask a judge to strike down that law -- unless I represent someone who has been prosecuted under that law. I can't just walk into court and say "Your Honor, this law should be invalidated." I must be able to say "Your Honor, I represent Occhidiangela, who has been prosecuted under this law, and our defense is that the law should be invalidated." (The defense obviously wouldn't be that short and undetailed, but that would be the argument).
This applies even to clearly unconstitutional laws. For example, if the law in question prohibited blacks from chewing bubble gum, it would pretty clearly violate the Fourteenth Amendment (unless there was a compelling state interest, which we will assume there was not). I still can't ask a court to strike it down unless I am representing a black person who is being prosecuted under that law.
I'm using a criminal law example here. There are also civil law provisions which courts can strike down. Again, they must be raised by a party harmed by the law. For example, another clearly unconstitutional law would be a statute of limitations on breach-of-contract claims which was 2 years for whites but 3 years for blacks. Clearly unconstitutional? Yes. But I can only ask a court to strike it down if I am representing a white who wants to bring a breach-of-contract claim after 2 years (but before 3).
(Again -- just to repeat -- standing is a federal doctrine and a state doctrine. The discussion above is about the federal standing standard, but many states have similar standards).
Standing is created by the grant of power to courts under Article III which gives them power over "cases and controversies." The Supreme Court has ruled that this requires an actual harmed party.
(There are exceptions to standing doctrine, and lots of little rules, but that would be really getting into a first-year civil procedure course, which I don't have time to lay out, and which you probably didn't want to read anyway :P If you are interested in standing doctrine, there are a lot of resources out there).
(Note that standing is also one of the more controversial doctrines in application -- judges are often (sometimes accurately, I would say) accused of ducking bigger issues by dismissing a case on standing grounds).