The important issue is whether the belief in question is vindicable, not whether S possesses that vindication.
When a claim is vindicable, an appeal to the falsehood of the KK thesis may (if the KK thesis is indeed false) help to make clear how first-order knowledge is possible for certain kinds of subjects.
(69) The Court invoked the third prong of the collateral order doctrine--the effective unreviewability of the order--and decided the ship owner's claim was "adequately vindicable
" in an appellate court, in spite of the acknowledgement that it would not be "perfectly secured by appeal after final judgment." (70) The Court, however, failed to explain in what ways the appellate court could adequately vindicate the ship owner's right.
Second, it is difficult to see how the assignment fiction avoids the Article II objection Justice Scalia first raised in Lujan and repeated in Steel Company and Laidlaw--by "assigning" the right to enforce a governmental "damages claim," "Congress has done precisely what we have said it cannot do: convert an `undifferentiated public interest' into an `individual right' vindicable
in the courts."(59) Third, there is nothing in the lengthy history of the informer action that even suggests the assignment theory.
To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an "individual right" vindicable
in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to "take Care that the Laws be faithfully executed."(38) At least in suits against the federal government, Justice Scalia warned that private lawsuits--in the absence of particularized injuries--impeded the Executive's ability to execute the law faithfully.