And where champerty and maintenance have gone to die.
The latest challenge to the Affordable Care Act a/k/a Obamacare seems to be coming apart at the seams. Some or all of the named plaintiffs in this suit, which is filed as a class action, seem to lack standing to sue because they will suffer no harm from the law they challenge. See, e.g., the article posted here on Lincoln's Birthday, "SUPREME COURT LATEST OBJECTORS TO OBAMACARE SUE WITHOUT STANDING ... Because they can. For some reason known only to them, their handlers, and others in their orbit."
Without being damaged by Obamacare, the named plaintiffs would lack more than their own individual standing to sue. Each one of them is supposed to be representative of the class of persons who are damaged by Obamacare. They filed their lawsuit as a class action. It is axiomatic, as they say, that in order to be a class representative, a plaintiff in a class action must share the significant characteristics of the alleged class. Perhaps the most significant of these is shared harm. If these people do not share the harm alleged to the class, they have no previously recognized right to represent the class.
These things are recognized immediately by lawyers, of course. Except, it seems, for lawyers employed by the Obama administration. "While the Obama administration hasn't said whether it will pursue a new challenge to the case based on the latest information, several legal experts said it would be a strong strategy." Sarah Ferris, "O-Care Fans: SCOTUS Case 'Unraveling'" posted by The Hill on Friday, February 13, 2015.
There is another issue lurking in the back of the minds of lawyers of a certain age. Perhaps these minds include the minds of lawyers involved in the latest lawsuit. While this issue may not justify a legal ruling in this instance, it may subconsciously affect not only the credibility of the plaintiffs, but also the credibility of the case itself. This particular issue exists separately but in tandem with the likely-to-prevail-but-only-if-they-are-raised-arguments surrounding standing and adequate class representation.
Wikipedia sets out commonly accepted definitions of "champerty" and "maintenance" as follows:
Champerty and maintenance are doctrines in common law jurisdictions, that aim to preclude frivolous litigation. "Maintenance" is the intermeddling of a disinterested party to encourage a lawsuit. It is "A taking in hand, a bearing up or upholding of quarrels or sides, to the disturbance of the common right." "Champerty" is the "maintenance" of a person in a lawsuit on condition that the subject matter of the action is to be shared with the maintainer. Among laypersons, this is known as "buying into someone else's lawsuit."
"Champerty and Maintenance," Wikipedia. It is widely reported that the plaintiffs were recruited for the latest litigious attack on Obamacare: "A problem with standing could be trouble for the plaintiffs and the conservative groups leading the lawsuit," including the one funding it. Sarah Ferris, The Hill, supra.
In order to reach the "merits" of the pending case, let alone decide the case, the Supreme Court is going to have to ignore a lot of reality.
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