Rules of Engagement: The Spatiality of Judicial Review (Chapter 10)

This paper posits that litigation is itself a space of engagement that has, to date, been under examined by legal geographers. It argues that one fruitful line of inquiry related to the project of re-inventing/re-orienting legal geography will be an investigation into the “rules of engagement” that dictate access to judicial review. Often described as “procedural” as opposed to “substantive” aspects of the law, these legal requirements tend to operate under a veil of neutrality. They are comprised of numerous requirements embedded within the legal system — ranging from jurisdictional limitations to burdens of proof — that reflect cultural assumptions about boundaries, privilege, power and control. Of particular interest for this paper are the rules governing the ability to challenge government conduct. These rules include not statutory requirements such as the Administrative Procedures Act but also constitutional issues related to the “standing requirement” and various prudential limitations related to what is termed “justiciability.” These rules determine not only when the government can be challenged in court but also the level of scrutiny brought to bear on state conduct. This paper examines why, for these reasons, the rules of engagement are playing an increasingly dispositive role in public interest environmental litigation.