Expanding the Zone, Tilting the Field: Zone of Interests and Article III Standing Analysis after Bennett v. Spear

Abstract:     
This article explores the implications of Bennett v. Spear for public law standing. The unanimous Bennett Court, in its opinion by Justice Scalia, applies slightly reformulated but ultimately manipulable "zone of interests" criteria; the opinion also utilizes a new framework for standing analysis under Article III of "procedural rights" claims. The Bennett Court looks for case- specific allegations that an alleged procedural misstep "alters the legal regime" by having "coercive" and "virtually determinative effect." This new framework arguably resolves a second (but unbriefed to the Court) split in the circuits over standing for "procedural rights" plaintiffs. Bennett's new framework threatens to turn the overlapping "redressability" and "traceability" standing criteria into a substantial hurdle for plaintiffs claiming an agency procedural misstep, and undercuts the instructions provided by the Court in Lujan v. Defenders of Wildlife. Bennett gives no apparent weight to implicit legislative valuation of procedures. Professor Buzbee argues that Bennett is a problematic decision that can and should be narrowly construed to give appropriate heed to legislative judgments about the importance of procedures associated with a regulatory goal. The article closes by arguing that half of Bennett's new redressability-traceability test--the "alters the legal regime" language--offers a means to harmonize disparate standing treatment of plaintiffs alleging reverse discrimination and more typical administrative law or environmental law claims, and also could ensure that courts play a role in policing agency actions under diverse initiatives designed to enhance regulatory flexibility.

Accepted Paper Series