Professor Robert Pushaw, "Clarifying Standing: Reviving the Original Understanding of Article III" -- George Mason Law Review (forthcoming)

Professor Robert J. Pushaw's article, "Clarifying Standing: Reviving the Original Understanding of Article III," (SSRN) will be published in the George Mason Law Review (Spring 2024).  The article considers the Supreme Court's standing doctrine and the original meaning of Article III that authorized parties to litigate a federal law case under three condititions.

Abstract of "Clarifying Standing: Reviving the Original Understanding of Article III"

The Supreme Court’s standing doctrine determines who can sue in federal court. For the past half century, the Court has asserted that Article III, by extending federal “judicial power” to “Cases” and “Controversies,” limits standing to parties who have a “personal stake” in a dispute with an adverse defendant. Specifically, plaintiffs must demonstrate that (1) they have suffered a particularized, concrete “injury in fact” (2) caused by the defendant (3) that is likely to be judicially redressable.

Unfortunately, the injury, causation, and redressability standards are so malleable that they are routinely manipulated depending upon whether a judge wishes to reach the merits, which reflects the judge’s view of the substantive legal issues presented. Consequently, standing cases are hopelessly confused and inconsistent. The Justices have recently lavished attention on the doctrine, but have only made matters worse by producing a welter of inscrutable majority, concurring, and dissenting opinions.

The foundational problem is that the Court’s standing law has no basis in Article III’s language or history or in the Constitution’s structure. That original meaning authorized parties to litigate a federal law “Case” if they satisfied three conditions. First, a plaintiff had to assert a legal right in a form prescribed by law, which since 1789 has included various proceedings that did not involve an adversarial defendant. Second, that claim had to arise fortuitously – i.e., the plaintiff had no control over the liability-triggering act or event and no intent to deliberately manufacture a lawsuit. Third, a “case” had to present a legal question that required interpretation by an independent federal judge who was an expert in federal law. Article III thereby furthered separation of powers because federal courts would accept all jurisdiction over “Cases” that Congress had validly conferred on them.

The Court faithfully implemented this understanding of Article III for more than a century and a half, which led to clear and predictable results. By contrast, the modern switch to the injury-causation-redressability triad has created an analytical muddle and has allowed federal courts to abdicate their duty to exercise their jurisdiction, granted by Congress pursuant to Article III, over “all Cases” involving federal statutory and constitutional claims. Reviving the original meaning of Article III would significantly clarify standing doctrine.