March 25, 2010

Not Ambinder's Day

Commenting on the complaint filed by 13 State's Attorneys General, Marc Ambinder wrote:
Reading through the complaint filed by 13 state attorneys general, against the health reform legislation, reader @calchala was struck by something that wasn’t there: the lack of any specific case citation to buttress the underlying claim that it is unconstitutional for the federal government to impose on individuals a mandate to buy health care and to punish those who don’t by levying a fine.
Eugene Volokh does the work that Ambinder seems incapable or unwilling to do:
Case citations buttressing the underlying claims are generally not included in complaints, at least in federal court. Just as oral argument is for oral argument, citation of precedent is for briefs supporting motions for summary judgment and the like. That’s standard federal practice; see, for instance, the Complaint in MGM v. Grokster, just to give an example of a famous recent case in which the Complaint was easily available. A complaint, Rule 8 of the Federal Rules of Civil Procedure tells us, “must contain”
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
And federal practice is that the “short and plain statement of the claim showing that the pleader is entitled to relief” is a description of the facts as the plaintiff sees them, coupled with a statement of which legal rules were allegedly violated (e.g., the First Amendment, or some statute, or some common-law doctrine) — not a legal argument providing the foundation for the plaintiff’s legal theory. Occasionally you might see a case cited in a complaint, for instance if the claim for relief is brought under a common-law doctrine, and the case provides the commonly known name for that doctrine. And a few complaints do include lots of legal argument, though those tend to look unprofessional or grandstanding. But complaints without case citations are perfectly normal. Legal argument and the citations supporting it are for briefs, not complaints.

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