Consistent Standing Doctrines

A circuit round-up.

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Will there be a legal and cultural consensus on transgender affirming healthcare? Why don’t female deputies get a full weekend in Dallas County? And what will Sarah’s baby’s name be? Sarah and David explore these questions and a smorgasbord of legal topics in a end of summer circuit round-up, including:

-Merit based and race neutral admissions process in Fairfax County
-Law firms discriminating on basis of race
-Fifth Circuit apocalypse case on mifepristone
-Standing doctrine mess
-9th circuit limiting transgender people’s participation in sports
-11th circuit case on transgender medical care for minors

Show Notes:
-Flagship Podcast Merch
-Sarah and David’s Book Club episode
-Snail Darter

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Comments (158)
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  1. Avatar photo
    WBrisky

    I think the best analogy for the "trans" issue is that of those individuals who believe that their perfectly healthy arm, or leg, should be amputated because they do not believe that it is part of themselves. This is a very strong delusion, and if the amputation is done they may feel, at least initially, much better. But no ethical doctor would do the amputation as it a violation of the mandate, "first, do no harm" in the hypocritic oath. The difference is that the amputation affects only the individual involved, but the "gender affirming care" (which is similar in intent and effect to the limb amputation) also requires everyone else in society to join the "trans" person in his delusion. And if you can believe that a man can become a woman, or vice-versa, then you can believe that Trump won the 2020 election or that Trump colluded with the Russians. It is just bad for society when the culture, and in some cases the law, forces you to believe, or at least act as though you believe, an untruth.

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  2. Helbock

    You guys talk like the only problem of malpractice are increased insurance charges but the greater and greatest problem is living through the severe psychological stress of a malpractice case. THIS IS A PERSONAL INJURY. To force someone to accept this risk or lose their lively-hood is not acceptable.

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  3. Echack

    Listened to this late due to a trip.

    My least favorite lack of standing case was when Hillary Clinton got appointed to the post of Secretary of State. Her appointment was clearly illegal under Article 1, Section 6 of the Constitution:
    "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time"

    While she was a Senator, the pay and benefits of the cabinet were increased. Nobody was considered to have standing, because the harm of increased pay/benefits to Mrs. Clinton were so small a harm to the individual. Now, they did arrange for her to get pay at the same rate before the increase took place. But, what about other "emoluments"? Health insurance or life insurance that came with the job could have gone up in cost. What about any per diems while under travel?

    (I think that in general, a president should have whomever they want in the Cabinet or other senior positions if they are minimally competent and not corrupt. BUT, the plain text of the Constitution was violated.)

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  4. Karin

    I’m late catching this episode, but I wondered as I listened to the discussion of parent’s rights/ medical care for children - David and Sarah thought that the state could restrict breast augmentation and rhinoplasty- what about infant circumcision? Could the state ban that?

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  5. Aaron

    Overly broad standing doctrine is really a separation of powers problem, isn't it? If most anyone can turn a policy goal into a lawsuit, they can circumvent article 1.

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  6. Max Marshall

    I have to object! :) Y’all said, “what about the bump stock ban” and “what about laws allowing large capacity magazines.” With all due respect, I think you both missed something important about the line you cited from Ho’s concurrence.

    There are exceedingly few studies of adequate statistical power capable of even suggesting a causal relationship between gun violence outcomes and gun laws in general, and none for the laws you mentioned. That’s because methodological problems make it incredibly difficult to conduct that sort of research (here is a primer):
    https://www.rand.org/research/gun-policy/analysis/essays/methodological-challenges-to-identifying-the-effects-of-gun-policies.html

    I’m not sure about the extant literature specifically on mifepristone, but as someone who’s published medical literature, I know that it’s more than possible to track the adverse events attributable to a particular drug under a particular usage in particular populations. It’s done all the time. Not only that—I t’s required.

    Conversely, if someone seeking standing must, as Judge Ho wrote, “prove that a particular law caused there to be more gunshot victims and that enjoining enforcement of that law would cause there to be fewer,” I would say to them, “good luck.”

    In fact, I’d challenge anybody here to point to a single example of a law related to bump stocks or high-cap magazines (or any other recent, highly-controversial gun law) where there is evidence of efficacy even vaguely comparable to the kind of evidence we have for the efficacy of FDA-approved prescription drugs. There are a couple of examples related to safe-storage laws, but even there it would be quite a stretch to say the relevant studies “prove” anything like what Ho laid out in his concurrence. The same cannot be said for FDA-approved drugs like mifepristone for which there is well-established scientific infrastructure enabling accurate assessments of efficacy.

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  7. Avatar photo
    Toog

    Okay this has been bothering me for a few days. I intuitively agree with the caution about cosmetic procedures for kids (on whether it’s a good idea, not whether legislatures can restrict them). But why do we accept cosmetic dental and orthodontic procedures as healthy and normal for kids, but not nose jobs?

    I’m sure we can make up a story for how the orthodontics are medically necessary, but c’mon, they’re often cosmetic. I feel like at some level this is purely a cultural habit, and there may not be an obvious bright line principle. Not that there’s anything wrong with that.

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  8. Avatar photo
    Svetlana Bekman

    Sarah, best of luck! Totally understand calling into work two days after baby. Post-delivery adrenaline rush! But this time, save the surge for yourself. xo

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  9. NotTheEditor

    Just want to send my best to Sarah and wishing you a speedy and healthy delivery and a speedy recovery! Looking forward to learning more about baby #2 when you are back!

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  10. Liquidvacation

    Happy leave and best wishes to Sarah! I'm on the edge of my seat waiting to find out... How that Wordle streak is going! ; ) You got me into it, I'm 46/46 so far and definitely starting to feel the pressure...

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