As I wrote at the time:
1. Touro obviously has standing to bring a declaratory judgment action against another for making representations addressed to a third party that the third party made subsequently to Touro.
I had forgotten about this important issue entirely until a friendly commenter (you know who you are - thanks!) tipped me off last week that the court had issued an order dismissing the case.
Oh, cruel wheels of justice, with your gnashing spokes like axes against the soul!
You can view all of the moving papers and orders through this site here. The order states that "Touro fails to sufficiently allege its standing, i.e. that it has a "legally protectible interest, that is in direct issue or jeopardy, in order to invoke the remedy of declaratory judgment.""
This, of course, is a grave injustice. As Americans, we all have the right to file class actions against parties with whom we have no direct dealings to declare them whatever mean words we want. For example, if I wanted to bring a class action on behalf of all accredited, legitimate law school supporters that Paul Campos is an "opium-smoking three-toed sloth," that's my right as an American.
Although Touro lost, one has to give credit to Touro and its general counsel, who fought the good fight and gave Touro's first-tier students a first-tier lesson in "fuck it" civil litigation. For example:
- Touro apparently brought a class action pro se, which normally wouldn't be viewed as advisable or proper (or allowed at all, at least in federal court, see Rule 23(g)), but let's call it innovation.
- In Touro's response to Novus' motion to dismiss, Touro pulls out one of the most essential tools in the civil litigator's kit: indignant bluster, accompanied with its cousin, barrage of conclusory adjectives (from page one alone of the memorandum: "defendant's nefarious operation...specious motion...well-founded opposing affidavits...smoke-and-mirrors legal argument....).
- Touro also delivers a nice serving of language errors, almost certainly to give the brief that nearly flushing shitlaw feel. For example, "slight-of-hand" is used (1), and the brief states that "Novus prays on the market and in turn its students pray on Touro and other law schools." (6) The second mistake is particularly ingenious, as it puns on the idea of Touro being both infallible and a victim at the same time.
- The brief spends two and a half pages discussing personal jurisdiction, which does not seem like it was even (or seriously) at issue. Classic misdirection.
- In addition to a barrage of case law, there's citations to a treatise and two law review articles. Lord knows lawyers need to cite to those more often. Lead by example, superheros. Lead by example.
- Finally, there's the clunky metaphor, another favorite of small law all-stars. "Novus has shot its sham degrees out from California, and those degrees have landed in New York...." (1). "The legal education community finds itself faced with a consequential choice between two roads, which are long and different [but are they open? -ed]. At least one of the roads is shrouded in legal uncertainty...And one road must be chosen....We are at a crossroads. The road should not end at the pleading stage...." (10).
The sanctity of the ABA-approved million dollar degree must be preserved.