Rules of Engagement: The Spatiality of Judicial Review

This chapter explores the idea that litigation is itself a space creating process that has, to date, commanded little attention from investigators of legal geographies. Understanding the spatiality of legal processes highlights one of the many relational qualities of law. Referred to here as the “rules of engagement,” they are the operational tenets of litigation that create the space in which the various actors — plaintiffs, defendants, judges, juries, expert witnesses, etc. — perform within the highly formalized legal arena that is the courtroom. The rules of engagement established for occupying space within contemporary legal systems have implications for many — if not all — investigations into spaces of law.The rules of engagement are not essentialist edicts that define the courtroom setting. As the examination of one narrow subset of these rules will demonstrate, the rules of engagement are dynamic, unfolding processes that both expand and contract formal legal spaces. As such, they reflect corresponding reflect cultural assumptions about privilege and authority. Understanding the rules of engagement and their productions can provide tools and resources for those seeking to understand the power formal legal processes play in determining how we perceive and understand virtually any investigation related to the spaces of law. The rules of engagement examined in this chapter are those that dictate when citizens can bring federal court cases in the United States that challenge government conduct. These rules are often referred to as limits on “judicial review” or “justiciability.” In theory, they are designed to keep the judicial branch from making decisions and enacting policies that should be left to the executive and legislative branches of government. As will be demonstrated, however, the judiciary also serves as a Kafkaesque gatekeeper — judges are among the most privileged legal actors and hold an inordinate amount of power to construct and police the spaces they occupy.