Grains of Sand or Butterfly Effect: Standing, the Legitimacy of Precedent, and Reflections on \u3cem\u3eHollingsworth\u3c/em\u3e and \u3cem\u3eWindsor\u3c/em\u3e

One test of whether a scholarly work has achieved canonical status is to ask respected scholars in the field which works, setting aside their own, are essential reads. William Fletcher’s article, The Structure of Standing, now in its twenty-fifth year, would almost certainly emerge at the top of any such lists among standing scholars. And yet, while many at this conference have built upon Fletcher’s insights, there remains notable disagreement concerning standing doctrine’s normative foundations. The central dispute concerns whether standing doctrine should be celebrated as furthering a “private-rights,” or instead, condemned as thwarting a “public-rights,” adjudicatory model. In a series of works employing social choice theory, I have presented standing doctrine as furthering a private-rights adjudicatory model. In separate high-profile works, Professors Heather Elliott and Jonathan Siegel have criticized this account, claiming it rests on the “great myth” that the judicial lawmaking is inextricably tied to dispute resolution, with precedent creation merely an incidental byproduct. Instead, Elliott and Siegel contend that the federal judiciary, including especially the Supreme Court, has the primary responsibility of announcing constitutional rules, with case resolutions a justificatory vehicle for performing that task. Siegel further maintains that if, as the social choice model suggests, standing raises the cost to ideological litigants of timing the path of case law to influence developing doctrine, it is no more effective than tossing a “few grains of sand” into the gears of the judicial-lawmaking apparatus. In this Article I respond to these critiques and defend the social choice analysis of standing and the private-rights model on which it rests. First, these and other public-rights scholars fail to appreciate that the private-rights model enhances the normative legitimacy and durability of precedent. If the justification for creating precedent is the present favorable conditions of judicial staffing, then the arguments for respecting the resulting precedent erode when those conditions change, favoring those opposing the precedent. Second, these critiques misread the social choice model of standing to imply that relaxing its limiting conditions undermines the claim that with reasonable assumptions, even if there are no changes in Supreme Court staffing, in the disposition of cases below, in intervening precedent, and in the jurisprudential views of sitting justices, ideological litigants can effect substantive doctrine through favorable case orderings. The opposite is true: Relaxing these limiting conditions has the potential to enhance, not diminish, incentives to manipulate case orderings for maximal doctrinal effect. Third, and finally, expanding the social choice analysis to account for (1) delays in lower federal courts or state courts, (2) the results of changed judicial staffing on the Supreme Court, and (3) the bidirectional nature of constitutional and prudential standing rules more likely generates a butterfly effect, with substantial implications for developing doctrine, than an inconsequential tossing of sand into the works of developing precedent

Cost/benefit studies of advanced materials technologies for future aircraft turbine engines: Materials for advanced turbine engines

Cost benefit studies were conducted on six advanced materials and processes technologies applicable to commercial engines planned for production in the 1985 to 1990 time frame. These technologies consisted of thermal barrier coatings for combustor and high pressure turbine airfoils, directionally solidified eutectic high pressure turbine blades, (both cast and fabricated), and mixers, tail cones, and piping made of titanium-aluminum alloys. A fabricated titanium fan blisk, an advanced turbine disk alloy with improved low cycle fatigue life, and a long-life high pressure turbine blade abrasive tip and ceramic shroud system were also analyzed. Technologies showing considerable promise as to benefits, low development costs, and high probability of success were thermal barrier coating, directionally solidified eutectic turbine blades, and abrasive-tip blades/ceramic-shroud turbine systems

Ohio's Drainage Laws - An Overview

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Space power systems technology enablement study

The power system technologies which enable or enhance future space missions requiring a few kilowatts or less and using the space shuttle were assessed. The advances in space power systems necessary for supporting the capabilities of the space transportation system were systematically determined and benefit/cost/risk analyses were used to identify high payoff technologies and technological priorities. The missions that are enhanced by each development are discussed

Flight tests of a clear-air turbulence alerting system

The detection of clear-air turbulence (CAT) ahead of an aircraft in real-time by an infrared (IR) radiometer is discussed. It is noted that the alter time and reliability depend on the band-pass of the IR filter used and on the altitude of the aircraft. Results of flights tests indicate that a bandpass of 20 to 40 microns appears optimal for altering the aircraft crew to CAT at times before encounter of 2 to 9 min. Alert time increases with altitude, as the atmospheric absorption determining the horizontal weighting is reduced

Private-Rights Litigation and the Normative Foundations of Durable Constitutional Precedent

This chapter advances a simple thesis that runs counter to much public-law scholarship. Holding all else constant, the more difficult, or costly, constitutional rulings are to obtain, the more durable the resulting precedent; conversely, the easier, or cheaper, such rulings are to obtain, the less durable the resulting precedent. Most public-law scholarship implicitly rests on the opposite premise that the relative ease or difficulty of obtaining constitutional rulings should correlate positively, not negatively, with the relative importance or unimportance of the asserted right. Within a public-rights adjudicatory model, important constitutional rights justify relaxing traditional constraints on constitutional decisionmaking, including ripeness, mootness, and, most notably, standing. Conversely, within a private-rights adjudicatory model, judicial rulings, however important, are legitimated by the need to resolve actual cases or controversies presumptively arising from circumstances beyond the claimant’s control. The public-rights model produces an unintended consequence for those seeking durable constitutional precedent. To the extent that the timing of constitutional litigation is driven by the happenstance of ideological sympathies of deciding jurists, the normative justification for affording the resulting precedent durable status is compromised once those conditions change, favoring the other side. By contrast, the private-rights adjudicatory model makes constitutional precedent more costly to obtain on all sides, thereby enhancing the normative foundation for affording precedent durable status. The analysis holds important implications for several notable bodies of law, including the historical status of Brown v. Board of Education; the stare decisis analysis in the jointly authored plurality opinion in the 1992 decision, Planned Parenthood of Southeastern Pennsylvania v. Casey; and Supreme Court doctrine concerning agency deference rules