Legal cases can be divided into three categories, corresponding to the way that law engages with the underlying claim of being-pained:

1.     Cases in which the underlying pain is both legally cognizable and legally remediable;

2.     Cases in which the underlying pain is not legally cognizable;

3.     Cases in which the underlying pain is cognizable but whose remedy is preempted by an overriding legal interest;

(1), the most straightforward of the three, is the category of case that courts most commonly see. The majority of claims for relief are cognizable; and most remedies are uncontroversial as a matter of form, if not of substance. This does mean that the majority of legal claims are successful. It means only that most claims are comprehensible to law, and that their constitutive questions—has a legal violation occurred, and if so, how should it be rectified?—can be resolved by applying the usual tools of legal reason.

(2) and (3) are theoretically richer than (1), for the simple reason that they represent exceptional cases. Cases in category (2) are interesting because they exist at the margins of law’s purview and, therefore, demarcate the boundaries of law. Finding that a claim is not legally cognizable, the Court does not necessarily denigrate its underlying pain. The pain exists; it was felt. The question, however, is whether this pain, though undeniably alive and actual in the plaintiff’s life-world, is also alive and actual in the law. Cases of the category (2) are responsible for maintaining the interface between law and the larger social world. Many rulings in this category could therefore be called “procedural,” because they concern the elements necessary to bring a legal claim in the first place.

Cases from category (3) are interesting for the same overarching reason as cases from category (2)—both set the bounds of law vis-à-vis the larger social world—but categories (2) and (3) nevertheless operate differently. Where cases from category (2) determine if the law can countenance a plaintiff’s pain in the first place, cases from category (3) determine if a plaintiff’s pain can be relieved. For the purposes of category (3), the legal status of the pain in question is unambiguous; the pain can be cognized and parsed. The question, therefore, is what law can do about the pain, and the answer is that law is barred from issuing a remedy. This happens for a variety reasons, including including constitutional preemption (the suit is barred by a constitutional provision), and estoppel by immunity (the defendant or defendants are judgment-proof). 

Cases from category (3) paint with a finer brush than their category (2) counterparts. Category (3) cases are often modest, and usually involve technical holdings, sagged with legalese. Nevertheless, they unsettle us—or should unsettle us—much more stirringly than category (2) cases. There is something quite simply unsatisfying about category (3) cases, as they seem to underscore an inexcusable, but nevertheless unfailing, limitation of law. When it comes to category (2), we realize that law cannot countenance all forms of pain. Although profound dispute exists as to what pain law should countenance, we forgive law, I think, for setting aside certain forms of pain aside as non-cognizable. Standing and jurisdiction are acceptable limitations to court access. What is harder to forgive is law’s inability to provide an obviously-harmed plaintiff with relief. To the extent that law attends to individual experiences of pain, it has an obligation, one might reasonably think, to fashion a remedy for such pain. In fact, study reveals that no such obligation exists. (A particularly egregious example is documented here.) This raises a quandary, embodied in the gap between law’s practical capacity and what we feel ought to be its capacity. And the quandary is this: What do we make of a legal system that can countenance an underlying existence of harm, and can recognize that, as a threshold matter, the plaintiff deserves to be made whole, but that nevertheless refuses to furnish the plaintiff with the relief he seeks? Is this a legal codification of mature and virtuous compromise? Or is it simply cowardice dressed up as moderation?
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