[*1458] V. THE OBFUSCATORY POWER OF METAPHOR

 

 [*1458]  V. THE OBFUSCATORY POWER OF METAPHOR

Language is a guide to "social reality." ... [I]t powerfully conditions all our thinking about social problems and processes. Human beings ... are very much at the mercy of the particular language which has become the medium of expression for their society. n499

As we have seen above, the original conceptualizations of adjudication encompassed both a public and a private rights model and contained no constitutional concept of standing. Disparate concepts of rights and remedies often expressed by the metaphor of "standing" were replaced by a single, conceptual ordering of the adjudicatory universe requiring injury, consistent with the private rights model. In Coleman v. Miller, n500 Justice Frankfurter nimbly invoked two parallel cognitive processes to combine the prototypical private rights model with the "standing" metaphor to converge on a single epistemically coherent result: a constitutional doctrine of standing.

Part of the explanation for the success of this convergence relates to the interaction of political power and metaphor: "[W]hether in national politics or in everyday interaction, people in power get to impose their metaphors." n501 If Brandeis and Frankfurter laid the road from Fairchild v. Hughes n502 to Coleman and Joint Anti-Fascist Refugee Committee v. McGrath, n503 the road certainly was neither smooth nor clear. When New Deal liberalism found its way onto the Court, it needed a mechanism by which to implement and establish this part of its judicial program as the orthodoxy that it is today. The repeated use of the "standing" metaphor, which has an ontological effect, provided that mechanism:

New metaphors, like conventional metaphors, can have the power to define reality. They do this through a coherent network of entailments that highlight some features of reality and hide others. The acceptance of the metaphor, which leads us to focus only on those aspects of our experience that it highlights, forces us to view the entailments of the metaphor as being true....

Though questions of truth do arise for new metaphors, the more important questions are those of appropriate action. In most cases, what is at issue is not the truth or falsity of a metaphor but the perceptions and inferences that follow from it and the actions that are sanctioned by it. n504

The important question for us, then, is whether the new metaphorically structured reality that emerged in Coleman and McGrath works. For  [*1459]  it is one thing to chart the historical development of a new constitutional principle and quite another to argue that no new constitutional principles are permissible because they are not within the original intent of the Framers. It is one thing to recognize the power of history in legal thought, as I do: "Just as in a scriptural religion, the most elaborate and established theological system can be challenged by the call ad fontes ('back to the sources')...." n505 It is quite another to rest on that argument, which I do not. n506

A new principle, conceptualization, or metaphor works if the "perceptions and inferences that follow from it and are sanctioned by it" lead to "appropriate actions." n507 I believe that the concept of standing does not work, but rather is obfuscatory. In saying that standing does not work, I mean something different than the typical claim that standing law is confusing and seems incoherent. n508 I mean, rather, that standing has disordering effects on our legal analysis which produce bad decisions on the merits. These disordering effects stem from the cognitive structure of this particular metaphoric conceptualization.

In Section II, we saw that the "standing" metaphor has specific entailments that are expressed in standing doctrine. "Standing" is a metaphor of individualism. The metaphor suggests, moreover, that the individual must have a particular kind of relationship to the adjudicatory process — a formal threshold, like standing up to be heard. Standing doctrine defines an individual's relationship to the adjudicatory process by a private rights model structured according to two source-path-goal metaphors: one causal, the other remedial. n509 These metaphors and their underlying schemata exert powerful influences on standing analysis.

To focus on "standing" is to do more than ask the doctrine's specific threshold questions. When we as lawyers focus our attention on those questions, we necessarily suppress aspects of the case that are unavoidably related to the very issues before us. This is the ontological effect of the metaphor. Similarly, the use of the source-path-goal schemata of the private rights model does more than just organize our analysis of the issues in terms of the elements of the schema. After all, standing law is a self-conscious effort to limit adjudication to cases that fit the prototype. It therefore structures our analysis in a way that produces clear reduction-to-prototype effects. Thus, in organizing the raw facts of a case, the legal system focuses on and treats only those aspects  [*1460]  that fit the best examples of the doctrinal elements. For instance, in Simon v. Eastern Kentucky Welfare Rights Organization, n510 the Court understood the plaintiff to complain about a physical injury when, in fact, the briefs and the pleadings were raising a much larger interest. n511

The practical result of these ontological and reduction-to-prototype effects is that standing law talks about one thing without talking about the thing to which it is inextricably attached n512 and, thus, often gets it wrong. Alternatively, it talks about one thing by talking about another and in the process garbles both. To demonstrate this, I will discuss four well known standing cases — Schlesinger v. Reservists Committee to Stop the War, n513 Flast v. Cohen, n514 Valley Forge Christian College v. Americans United for Separation of Church and State, n515 and Simon v. Eastern Kentucky Welfare Rights Organization. n516 Each of these public rights cases would better fit a constituent model than a private rights one. Distortions occur when these cases are treated in terms of the schemata of the private rights model — much like forcing a square peg into a round hole. This section illustrates the confusion between standing and issues central to the merits that is the inevitable, distorted result. n517

A. Standing: The Who and the What

The dogma of standing doctrine that it is a question of access apart from the merits of the controversy, n518 is a product of the metaphor's primary ontological effect. This distinction makes sense in terms of the metaphor itself: The question is not what you have to say, but whether you can be heard to say it (that is, are you "standing"?). That latter issue depends on whether you are in a position to state your claim (do you have "locus standii"?). The effect is ontological, and not just an application of appropriate analytic tools, because the effect is at odds with common sense experience. That is, how can we know whether you should be heard until we allow you to speak? If what you have to say is powerful and important, why shouldn't we hear what you have to say? Once you have spoken, it is entirely likely that we might decide that we  [*1461]  wanted and needed to hear your statement after all. n519

Our legal training taught us that the law has its own logic which is different from common sense. Thus, as lawyers, we can feel comfortable with the notion that separating standing from the merits makes analytic sense in some circumstances. There are cases in which it seems appropriate to distinguish the question whether the defendant has violated the applicable law from whether the plaintiff is the appropriate person to compel the defendant to stop. But when we look at these propositions in concrete settings, we find that their coherence is more apparent than real. What seems to work passably well in a private rights context is in fact unnecessary. It is distorting when applied to a public rights context. I will use two variants on a "competitor-standing" example to clarify what I mean.

Suppose I hold a patent for a new, more efficient, manufacturing process for high-tech widgets. Provender Enterprises uses my process to manufacture widgets without first obtaining a license from me. Its competitor, Widget Wonder, sues to enjoin Provender from violating my patent. It should not matter that, on the merits, Provender is in violation of my patent (nor, for that matter, that Widget Wonder is in fact suffering economic loss from the competition). It is for me to decide whether I am hurt or offended by Provender's action. If I happen to decide that my continuing relationship with Provender is more important than the technicalities of a license, Widget Wonder is (in our system) stuck with my assessment of the relative economic benefits.

But, the reason that Widget Wonder cannot sue even though it has suffered real economic loss has little to do with an inherent problem of "standing." Widget Wonder can present a justiciable case. It will, however, lose on the merits because as a matter of policy our legal system does not afford it a remedy. The patent laws were intended to provide short-term monopolies to inventors, not to protect unrelated competitors such as Widget Wonder.

In the private rights context, the concept of standing is entirely unnecessary. In our legal system, we ordinarily handle the same concerns with other concepts. For example, we consider whether to recognize an interest that Widget Wonder has in the enforcement of the patent laws (that is, does it have a right?). n520 If we were to decide that Widget Wonder has a right, then we consider whether it matters that I chose  [*1462]  not to enforce, rather than to license (that is, is a remedy appropriate?). Ordinarily, these concepts adequately distinguish between the acceptability of the defendant's conduct and the entitlement of the particular plaintiff to relief.

The rigid separation of standing from the merits changes from unnecessary to unhelpful as we shift to the public rights context. Suppose Widget Wonder believes that the patent office illegally issued the original patent. It would like to compete with Provender, but is afraid that I might sue to enforce the patent. It could raise the issue as a defense, or seek a declaratory judgment against me. n521 But. because Widget Wonder has a continuing stake in a fast-changing field of technology and is concerned that this error resulted from systemic problems in the patent bureaucracy, it seeks instead a declaratory judgment against the patent office.

Modern standing law would grapple with this problem by asking a series of questions about the relationship of Widget Wonder to the adjudicatory process: Did it suffer injury-in-fact? Was that injury caused by the patent office? Would it be redressed by the order sought? Is the injury like that of a traditional private-rights plaintiff, or one in common with the public at large?

These questions are separate from the "merits" of the patent office's conduct; they are threshold questions. But, in a variety of ways, they draw our attention away from the underlying issues. For example, standing law tells us to look for direct, concrete injury and then to limit the suit to a question about the patent office's responsibility for that injury. But if we do, we will miss altogether Widget Wonder's central concerns. We will miss as well the public issues raised by the case. Those issues concern the patent laws' broader role in promoting technological innovation and economic competition, a social interest that is stifled by rewarding noncontributing technologies with monopolies. Those issues also concern the variety and effectiveness of the alternative mechanisms for enforcing those social interests. n522 The focus on actual injury instead is a reduction-to-prototype effect that obscures these larger concerns.

As with the private patent case, these public issues can be cast as questions of rights and remedies. Or they can be considered as  [*1463]  straightforward matters of policy. In either event, we may decide that Widget Wonder is not the best party to raise these questions or that there are other, better mechanisms available to treat them. But to bury these questions by dealing instead with a question of "standing" — with the plaintiff's generalized relationship to the judicial process — risks missing what is most important about the case and the choices that the case poses. It risks as well some bad choices because of a failure to focus on the critical questions. Standing doctrine asks about the litigant's stake even as we resolutely refuse to consider "the stakes." Of course it is obfuscatory.

B. Ontology Redux: A Modern Standing in Court

In Schlesinger v. Reservists Committee to Stop the War, n523 the plaintiffs sought to force members of Congress out of the Armed Forces Reserve on the ground that their membership violated the Constitution's incompatibility clause. n524 The district court had solved the concrete injury conundrum by arguing that the incompatibility clause was designed to forestall the potential for injury, like a conflict-of-interest statute. n525 The Court rejected that analysis because there was no injury-in-fact. n526 In the Court's view, the lower courts had no business evaluating the meaning and effect of the incompatibility clause to determine standing: "Standing was thus found by premature evaluation of the merits of respondents' complaint." n527

The Court's reasoning does not withstand analysis; it can only be accounted for in terms of the cognitive phenomena of standing's ontological and reduction-to-prototype effects. Let us examine first the ontological effect of "standing" in the Court's reasoning. What was accomplished by this fetishistic fastidiousness about "premature evaluation" of the merits? No obvious process values were at stake: The problem was not the poverty of the record or the lack of participation by the adverse parties. Nor did the lower court first decide that the congressmen had violated the Constitution and then reason backwards in an unprincipled fashion to find standing. Rather, the court understood "the primary if not the sole purpose of the bar against Congressmen  [*1464]  holding executive office" to be directed at "maintaining independence among the branches of government...." n528 Accordingly, the court concluded that "the interest of plaintiffs as citizens is undoubtedly one which was intended to be protected by the constitutional provision involved." n529

If the district court was correct that the incompatibility clause created both an affirmative duty on the respondents and a correlative right in the citizen-plaintiffs, then the plaintiffs were "in the position of a traditional Hohfeldian plaintiff" n530 no less than if they had sued upon the hypothetical conflict-of-interest statute (or if I sued Provender as the holder of the patent). If the court found that the plaintiffs' claim had merit, then denial of standing would be preposterous. If the court found that the plaintiffs' claim had no merit, it could still dispose of the case on a motion to dismiss. n531 "Premature evaluation" in this context is a consequence of the ontological effect of the entailment of the "standing" metaphor that suggests a formal, nonsubstantive threshold. Its consequence, however, is to obscure the merits and determine them obliquely.

The Court's rejection of the lower court's conflict-of-interest analogy illustrates the reduction-to-prototype effect of the injury prong of standing analysis. The Court saw only "injury in the abstract," n532 and treated as speculative any claim that citizens might actually have been harmed. But the district court's analysis understood that harm is often unpredictable or diffuse. An actual injury does not occur every time a driver runs a red light. But we enact traffic laws both because we know that sometimes there is an injury and because we want to be able to rely on the signal and cross the street in safety. We could instead have a rule that running a red light is only a wrong if someone is hurt, or we could always wait for the pedestrian's survivors to bring a private suit. But we don't; we make disobedience of traffic signals a crime because our capacity to conceptualize and project from everyday experience allows us to plan and to avoid inconvenience and future injury.

We enact conflict-of-interest provisions (or put them in the Constitution)  [*1465]  for similar reasons: We consider the issue important and know that the harms will often be too subtle to perceive directly. Plainly, the Court confirmed the latter point; it wanted prototypical injury of some sort.

A footnote to the Court's discussion of the district court's argument demonstrates the degree to which this reduction-to-prototype effect distorted the Court's reasoning. The Court acknowledged that Congress could enact a conflict-of-interest statute "directed at avoiding circumstances of potential, not actual, impropriety...," and that if it did, "the requisite injury for standing would be found in an invasion of that right." n533 But what the Court did and did not conclude from that observation reveals the distorting effects of its reduction-to-prototype analysis. The Court never asked the obvious question: If Congress could enact a statute creating such a right, and if that statute would justify standing, then couldn't the Framers have already done so when they wrote the incompatibility clause? The Court did not ask this obvious question because it was clearly caught in the cognitive trompe l'oeil of the reduction-to-prototype effect: It posited that even if Congress were to pass such a conflict-of-interest statute, article III would still require "concrete harm" before a citizen could complain to a court about an actual conflict-of-interest. n534 In short, the Court concluded (apparently without realizing it) that Congress had the power only to enact a statute recognizing the enforceability of fiduciary obligations. A true conflict-of-interest statute would be constitutionally unenforceable by members of the public because, by definition, prototypical injury would not yet have occurred. n535

A possible response to my argument that Schlesinger illustrates the ontological and reduction-to-prototype distortions of standing doctrine would be to say that Schlesinger simply overemphasizes the separation between standing and the merits. Flast, after all, observed that "in ruling on standing, it is both appropriate and necessary to look to the substantive issues ... to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated." n536 But that would not provide a meaningful answer to my critique. Flast, after all, is one of the primary sources of the doctrine that standing is separate from the merits: "The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal  [*1466]  court and not on the issues he wishes to have adjudicated." n537 In essence, Flast says that "we don't look at the merits, but we will look at it just a little bit." n538 Moreover, the Flast position simply digs a deeper analytic hole: There is little in standing law that is more intractably problematic than the Flast double nexus test. The test is a wonderful example of how difficult it can be for the Court to talk about the things it needs to and still stay within the "standing" metaphor: The contradiction in Flast arises because the Court wants and needs to focus on the merits of the plaintiff's claim and still treat standing as an entirely threshold question. It bridges these two incompatible positions by abstracting the essential elements of the claim as neutral, process oriented "nexuses."

In Flast, a taxpayer challenged, on establishment clause grounds, a federal statute providing funds to support the teaching of secular subjects in religious schools. The Court upheld the taxpayer's standing. It both identified the plaintiff's "personal stake" n539 and distinguished Frothingham by focusing on "the nexus between the status asserted by the litigant and the claim [s]he presents...." n540 Like Ms. Frothingham, Ms. Flast challenged a taxing and spending program. But, unlike Ms. Frothingham, who invoked the tenth amendment, Ms. Flast sued on the basis of a specific constitutional limitation on the taxing and spending power. Thus, the Court concluded, Ms. Flast and her co-plaintiffs had "the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements." n541

This analysis fails, as Flast's critics have argued, because the double nexuses "are not in any sense a measurement of any plaintiff's interest in the outcome of any suit." n542 Indeed, that critique is unanswerable if the double nexus test is supposed to address how the litigant's status relates to any generalizable conception of judicial process. But by  [*1467]  abandoning this threshold entailment of the "standing" metaphor, as the Court could not, we can make some sense of the Flast nexuses in case-specific and litigant-specific terms.

Ms. Flast's nexus as taxpayer to her challenge of an exercise of the taxing and spending power was not significant because it gave her some greater financial or personal stake in the outcome. Rather, the nexus was significant because she was asking for nothing more than she was due under the law: On the merits, she had a first amendment right regardless of the amount at stake. Ms. Flast was arguing that the establishment clause protected her from a society in which tax monies would be used for impermissible, religious purposes. n543 The amount (or lack) of injury to her pocketbook was beside the point; the exaction of even "three pence" was enough to establish that the government could "force h[er] to conform to any other establishment." n544 The first amendment exists to forestall the more direct injury. In other words, the Flast nexus that purported to answer the threshold question really addressed the merits of the plaintiff's claim. n545 The Court could only consider her stake by considering "the stakes." n546

 [*1468]  If Flast reveals the garbled effect standing has on the doctrinal discourse, then Valley Forge Christian College v. Americans United for Separation of Church and State n547 demonstrates the costs — indeed, the mortal constitutional danger — of such disordered modes of thought. In Valley Forge, an establishment clause challenge to the donation of surplus government property to a sectarian college, the Court applied the double nexus test of Flast to reject the plaintiffs' standing. The Court reasoned that, unlike the Flast plaintiffs, the plaintiffs in Valley Forge had not challenged an exercise of the congressional taxing and spending power on the basis of a specific limitation on that power. Rather, the plaintiffs challenged an executive action by the Department of Health, Education and Welfare ("HEW"), authorized by a statute passed pursuant to the property clause of the Constitution. n548

The Court's literal treatment of the Flast nexus test was just as much a fiction in Valley Forge as in Flast. The double nexus test could no more demonstrate that the Valley Forge plaintiffs lacked a sufficient interest in the subject matter than it could explain why an earlier Court had accorded "standing" to Ms. Flast. n549 Rather, an entirely different approach to standing distinguished Flast from Valley Forge. Although Flast ostensibly established threshold criteria, the Court essentially had looked for legal injury. The Flast Court found that legal injury in the nexus between the plaintiffs' claim and the applicable legal principles, that is, by considering the nature of the plaintiffs' claim on the merits. In Valley Forge, on the other hand, the Court was literalist and reductionist: "We simply cannot see that respondents have alleged an injury of any kind, economic or otherwise, sufficient to confer standing." n550

The court of appeals had tried to use the legal injury approach by recasting that approach in terms of standing doctrine. The court of appeals understood the plaintiffs' claim to rest, not on their status as taxpayers, but rather upon the "'injury in fact' to their shared individuated right to a government that 'shall make no law respecting [an] establishment of religion,'" n551 which the court viewed as a "particular and concrete injury" to a "personal constitutional right." n552 The  [*1469]  Supreme Court majority rejected the analysis that would make "the mere allegation of a legal right sufficient to confer standing," n553 and correctly noted that the lower court's analysis was inconsistent with the reduction-to-prototype, injury-in-fact analysis of Schlesinger and Richardson. n554

The majority had an important reason to reject an analysis that focused on the assertion of a right as sufficient to meet the threshold requirement: To adopt the analysis would recreate the circularity of the legal interest test and threaten the integrity of the standing concept. n555 In the public rights context, in which injury had never been understood as prototypical, there is only legal right (that is, legal injury). The plaintiff sues because the government did something the law prohibits. The "injury" is to whatever concern lies behind the law. Thus, to allow "standing" to members of the public because they assert bona fide legal rights would be to recreate the public rights model.

But consider what this conclusion implies about the stakes in modern standing decisions. A "no-injury" determination is necessarily a "no-right" determination. Because the "injury" is to the legal interest, the plaintiff's "stake" is precisely what is at stake on the merits. Once the tool of liberals to avoid conservative judicial action, the use of standing law as a jurisdictional bar is now an axe wielded by the conservative Court to cut down the existence of rights previously unquestioned.

Justice Brennan appreciated part of this argument in his dissent in Valley Forge, although he failed to grasp its full significance. He noted that, because  [*1470]  [a] plaintiff's standing is a jurisdictional matter for Art. III courts, and thus a "threshold question" ... there is an impulse to decide difficult questions of substantive law obliquely in the course of opinions purporting to do nothing more than determine what the Court labels "standing"; this accounts for the phenomenon of opinions, such as the one today, that tend merely to obfuscate, rather than inform, our understanding of the meaning of rights under the law. n556

He argued that "[t]he drafters of the Bill of Rights surely intended that the particular beneficiaries of their legacy should enjoy rights legally enforceable in courts of law." n557 But Justice Brennan could not answer the majority's critique; he could not explain his position in terms of the process limitations expressed in current doctrine. He instead "[read] cases such as Frothingham and Flast as decisions on the merits of the taxpayers' claims." n558

Justice Brennan was correct. The concept of standing necessarily undermines the concept of rights under law. He could not answer the critique because he could not step outside the current doctrine's ontological and reduction-to-prototype effects. We must first accept that the Court's treatment of standing as jurisdictional is historically unjustified before we are free to see standing doctrine's inevitable analytic consequences. The Court's standing doctrine is not just a matter of misdirected impulse. "Standing" is and can only be a question about the legal rights at stake. Consequently, the Court's application of standing to reject "jurisdiction" in public rights cases will always undermine the rights that comprise the core of our current understanding of the concept of "the rule of law."

The doctrine of standing necessarily undermines our understanding of the stakes in any given case; the Court focuses on ostensibly neutral, process-oriented criteria even as it unavoidably decides the merits of the plaintiff's claim. Perhaps Simon v. Eastern Kentucky Welfare Rights Organization n559 illustrates best this phenomenon. In Simon, the Court employed the tripartite injury-in-fact, causation, and redressibility test of standing n560 to reject the claim by indigents that a change in Internal Revenue Service ("IRS") regulations concerning hospitals eligible for  [*1471]  tax-exempt status under section 501(c)(3) n561 violated the terms of the statute. The plaintiffs included persons who had been turned away from hospitals that qualified for charitable status under the new standards. The plaintiffs sued the Secretary of the Treasury, alleging that the Nixon Administration's change in the relevant regulations had encouraged the hospitals to deny service to indigents.

The Court held that the plaintiffs had no standing. It accepted that at least some of the plaintiffs might have suffered injury-in-fact when denied access to needed medical services because they were indigent. It held, however, that this assumed injury was not enough for standing. In the Court's view, the existence of a case or controversy between the litigants depended on a twofold analysis: whether the defendants' challenged action caused the injury n562 and whether a favorable decision was likely to redress the injury. n563 With regard to each prong of this analysis, the Court found the connection speculative: A hospital might have decided to deny treatment to indigents for reasons other than, or even in spite of, the tax implications. In that event, no court order restoring the IRS ruling (requiring treatment for indigents as a condition of charitable status) would result in the desired benefits to the plaintiffs because hospitals might decide to forgo the tax benefits in order to avoid providing the service.

The plaintiffs countered this reasoning by arguing that the hospital industry had represented to Congress the importance of such favorable tax treatment to not-for-profit hospitals. In response, the government argued that charitable contributions only accounted for four percent of hospital revenues. The Court interpreted this "conflicting evidence" as support for the government's position. It held that the plaintiffs had failed to establish that hospitals receiving tax-exempt status depend on charitable contributions. n564 The Court concluded that "the complaint suggests no substantial likelihood that victory in this suit would result in respondents' receiving the hospital treatment they desire." n565

Viewed through the lens of "standing," the Court's analysis seems to make sense. Remove that lens, however, and the elaborate structure that the metaphor sustains can be seen to collapse.

The reduction-to-prototype effect of the injury-in-fact requirement for standing focused the Court on the wrong injury. So did the causation analysis: "Cause" asks for "effect," and the Court looked for concrete  [*1472]  injuries: injuries "in fact." The Court treated the claim of the Simon plaintiffs in just this way:

The obvious interest of all respondents, to which they claim actual injury, is that of access to hospital services. In one sense, of course, they have suffered injury to that interest. The complaint alleges specific occasions on which each of the individual respondents sought but was denied hospital services solely due to his indigency.... [S]ome have been denied service. But injury at the hands of a hospital is insufficient by itself to establish a case or controversy in the context of this suit, for no hospital is a defendant. The only defendants are officials of the Department of the Treasury.... n566

There is a subtle and unaccountable shift here from the concept of "access to services" to that of "denial of services." In the private rights model, with its source-path-goal schema of causation by the defendant of an injury "in fact" to the plaintiff, denial of access is only an intermediate causal step to the ultimate injury, the denial of needed medical care. The new IRS policy did not cause that injury: that injury resulted from intervening causes controlled by other (non)parties. Thus, standing was lacking.

But the plaintiffs had presented a different case. They were concerned about specific instances of inability to obtain care (the prototype). But they experienced their situation and manifested their concern in terms of their loss of continuing access to care (the conceptual extension). They claimed that the charitable treatment of hospitals existed primarily to provide a source of free care to indigents financed, not directly by the government, but by private contributors. n567 This claim rested on an assumption about, and an assessment of, rational responses to tax incentives. In a sense, then, the plaintiffs claimed to be third party beneficiaries of the tax incentive scheme of the code. n568 "The relevant injury ... [wa]s, then, injury to this beneficial interest — as respondents alleged, injury to their 'opportunity and ability' to receive medical services." n569

By changing the determinants of charitable status, the IRS effectively reduced the flow of money that hospitals would use for free indigent  [*1473]  care. No longer required to provide free services, the hospitals could instead funnel those funds to subsidize the care given others: the well-to-do and the insured. As a result, indigent plaintiffs faced a reduction of available services. This was the "injury" caused by the new IRS policy. Like any sensible, middle class person, the plaintiffs were concerned about the diminution of access. Most of us place substantial value on access to medical care when we need it. We do not wait for the moment of medical need to inquire into the availability of services. If we are middle class and have the financial resources, we spend substantial funds to provide ourselves and our families with assured access: It's called medical insurance. If the insurance company were to abrogate our policies, we would have standing to sue without waiting for an actual physical injury to occur, such as a denial of care because of inability to pay. In the private sphere, the protected interest (the deprivation of which confers "standing") is called "contract." But the Simon plaintiffs were caught in a double bind: They had neither a prototypical contract nor a prototypical injury.

Simon, then, illustrates a twofold reduction-to-prototype effect. The charitable provisions of the code were a nonprotypical contract in which the government provided tax benefits, the charitable donors provided money, and the hospitals provided care to the indigents who were the intended beneficiaries. n570 When the IRS abrogated the deal, the indigent plaintiffs suffered injury to a vital, life or death interest. To recognize that the middle class policy holder has suffered a cognizable injury but to deny to indigents standing to challenge their parallel reliance on the program of public benefits embedded in tax policy is, simply, to confer a right on the merits in one case and not the other. The Court didn't see that because, arising in a setting of public benefits, the situation did not fit the private law prototypes.

Although Justices Brennan and Marshall disagreed with the majority in Simon on the standing issue, they too missed the central issue of the case. They concurred in the judgment because, to them, the case was not sufficiently ripe or concrete. It was not ripe because the new IRS ruling did not specify all of the circumstances and factors that would determine its application to other hospitals. The case was not concrete because the plaintiffs had not shown that the specific hospitals which  [*1474]  provided their "opportunity and ability" to obtain free care were in the class of hospitals affected by the ruling.

If this reasoning sounds suspiciously like the majority's causation analysis, it is because the concurrence applied the same causal source-path-goal metaphor to a different goal. Justices Brennan and Marshall were no less constrained by the private rights model than was the majority. They also missed the public rights thrust of the plaintiffs' case.

The original Revenue Ruling excluded from the definition of "charitable" hospitals that did not provide some free care to indigents. n571 The new ruling stated explicitly that the promotion of the health of the community was inherently charitable "even though the class of beneficiaries ... does not include ... indigent members of the community." n572 The indigent plaintiffs knew that this policy revision would surely affect some of them. They sued to protect those victims, whomever they might be. But the Court wanted prototypical sources, identifiable victims with identifiable injuries, and prototypical causation. In applying the source-path-goal metaphor of the private rights model, the Court wanted the plaintiffs to show a shorter and clearer path and not the "attenuated line of causation" n573 of a public case.

In the end, all of the members of the Court simply missed the point because the reductionist analysis of current doctrine prevented them from seeing the normative question — the merits — that lay behind the case. Nevertheless, the decision amounted to the adverse normative determination that both the majority and the concurrence purported to avoid.

Simon also reveals the distorting results of the ontological effect of the "standing" metaphor. The Court treated the question of standing as addressing the sufficiency of the allegations of the complaint. n574 Standing purports to be a threshold question of justiciability; the logic of the metaphor therefore argues that standing should be judged on the basis of the pleadings. But the Court did not really do that. It first argued that the complaint did not establish the requisite causal connection between the defendant's action and the injury alleged. The Court then relied on the conflicting "evidence" and rejected the plaintiffs' case on causation as "purely speculative." n575

Ordinarily, the allegations of a complaint don't "establish" anything; they merely assert what the plaintiff needs and intends to prove  [*1475]  at trial. n576 Ordinarily, a defendant's motion for summary judgment is the procedural device that tests whether the plaintiffs can establish their factual allegations. n577 But, in a sense, these criticisms are beside the point: The Court was deliberately ambiguous about whether the fatal flaw was a problem of pleading or a problem of proof. n578 The "standing" metaphor necessarily produces this ambiguity: If causation is part of the jurisdictional prerequisite of the standing test, causation should ordinarily be ascertainable from the complaint. To admit otherwise would throw the whole endeavor into question. If the plaintiffs lost in Simon because they could not prove that the IRS caused their injuries, then they lost not because they had no standing but because the IRS was not responsible for their injuries. Admit that conclusion and one has admitted that to ask about causation is to ask about something else entirely: the merits of a private law dispute.

The Court's causation analysis necessarily suggests that, if we adhere to the private rights model, the flaw in the plaintiffs' case was on the merits. The essence of the remedial source-path-goal metaphor is proof of the causal source-path-goal metaphor: that the defendant's actions caused the alleged injury. n579 Consider a familiar tort paradigm. A  [*1476]  woman is waiting on line to board a bus. She stands at the rear of one of those aluminum and plexiglass bus shelters that line some cities' streets. A man holding a plain, wrapped package boards the bus. The driver negligently takes his foot off the brake. The bus lurches. The man falls. The package, containing fireworks, hits the ground and explodes. The bus shelter collapses and injures the woman. If this modern Ms. Palsgraf n580 hopes to recover from the bus company, she will at least have to prove that the shelter collapsed as a result of the explosion and not as an independent result of defects in its manufacture. If she wants to recover from the more solvent manufacturer of the shelter, she will have to show that there were defects in its manufacture — that is, that a well designed and constructed shelter would have withstood the fireworks display. If she fails to prove causation in either case, she loses not because she had no standing but rather because she failed to establish the elements of the causal source-path-goal metaphor: she had no case on the merits. The court exists to make this very determination.

The degree of causation required for liability is the fundamental question of the suit. In many cases, causation is unproblematic because the source is clear and the path is short and direct: I accelerate too fast and my car hits your car. But in many cases the source is remote and the path is long. Then we have to ask for the proximate cause: "What we do mean by the word 'proximate' is, that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point." n581

Problems of multiple, indirect causation are the most difficult for the source-path-goal metaphor of causation because there are many sources and criss-crossing paths. n582 As the causal paths multiply and cross one another, the prototype of the causal source-path-goal metaphor fails to  [*1477]  provide much structure and we get all the familiar distortions of proximate cause analysis. One way we try to find our way out of the maze is to ask whether one of the defendants was at least close enough to see it coming: Was the injury foreseeable? n583 Was the victim amongst the foreseeable beneficiaries of the duties we expect of the manufacturer? n584 Or, we might accept the limits of the source-path-goal schema and make a naked normative judgment. n585 But even if the path were long and the proof slim, we would not (in the language of Simon) reject "standing" because the causal connection was "speculative." n586 The plaintiff would have "standing" to try to establish the attenuated causal source-path-goal metaphor and to argue the normative questions regarding the scope of the duty.

Simon pretermitted the ordinary judicial process by making these merits determinations on the pleadings as a threshold matter. The Court simply declined to trace the causal path. It could just as well have said any of the things that courts usually say in deciding the merits of similar tort cases: that the IRS ruling was not the "proximate cause" because hospital policy determinations independent of the tax consequences may have been the "real" cause of the denial of service; that it was not "foreseeable" that hospitals would gauge their provision of free services for indigents in response to changes in tax incentives (Congress' attempt to influence hospital behavior in just this way, notwithstanding); that, when the IRS considered restructuring the tax incentives, it owed no duty to, and was free to ignore the potential effects on, indigent patients.

If standing law does no more (and no less) for us as a heuristic device than does proximate cause analysis in tort law, we should be little surprised. And if it serves merely to recreate the same sets of questions that we asked in the context of private tort law, neither should we be surprised at that result. The congruence between standing law and tort law is as predictable as is the facial characteristics of an individual and his or her clone. Standing law and tort law share the same animating genes — that is, the same conceptual schema.

But there is one critical difference. Standing is a threshold issue. It asks the same questions, but at the beginning of the lawsuit. Proximate cause cases at least have the benefit of a completed exploration of factual complexities and a full development of their analytic and normative consequences. Constitutional standing doctrine, on the other hand, asks the plaintiff to unravel all of these intricacies — the multiple sources and the criss-crossing paths — before the record is developed. It  [*1478]  is no wonder that the Court seems consistently to require prototypical injury and prototypical causation: That's all one could possibly see at that point. And, it is no wonder that this truncated process produces unsatisfactory opinions and bad decisions.

Standing law and tort law also share the same individualistic entailments of the causal source-path-goal metaphor. Consider the Palsgraf paradigm. The same conceptualizations that separate current standing law and the older public rights model also divide Judge Cardozo's opinion for the majority from Judge Andrews's dissent. Judge Cardozo argued that Ms. Palsgraf could not recover because she had suffered no legal wrong (no source). n587 Judge Andrews's normative approach was more catholic:

Should we drive down Broadway at a reckless speed, we are negligent whether we strike an approaching car or miss it by an inch. The act itself is wrongful. It is a wrong not only to those who happen to be within the radius of danger but to all who might have been there — a wrong to the public at large. n588

Judge Andrews did not insist on a source-path-goal metaphor that personalized the issue. He took a regulatory approach that understood the basic unity of the community's interest: Negligent conduct endangers many different parts of the whole; it is "a wrong to the public at large" regardless of which individual part is injured. This schism between the individualistic, "personal" approach to rights and the regulatory, communal sense of law persists in current standing law.

Standing law reflects the features of tort law because, like the clone, it is an unmediated outgrowth of the original. As we have seen, standing law developed directly from the private rights model. Standing doctrine merely teased out the essence of the equity version of that model. n589 Thus distilled, it crystallized that essence as constitutional precipitates consisting of the same elements. The result is therefore the same. Only the discourse is different, and obfuscatory.