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The Standing Doctrine's Dirty Little Secret

107 Northwestern L. Rev. 169 (2012)

UC Hastings Research Paper No. 13

69 Pages Posted: 22 Mar 2012 Last revised: 15 Jan 2013

Evan Tsen Lee

University of California Hastings College of the Law

Josephine Mason Ellis

affiliation not provided to SSRN

Date Written: December 3, 2012

Abstract

For the last forty years, the Supreme Court has insisted that the standing doctrine’s requirements of imminent injury-in-fact, causation, and redressability are mandated by Article III of the Constitution. During that same time, however, the federal courts have consistently permitted Congress to relax or altogether eliminate those requirements in many “procedural rights” cases — ones in which a federal statute creates a right to have government follow a particular procedure, including to provide judicial review of agency decisions. This Article asks how best to rationalize this contradiction. After examining several possibilities, we conclude that the best course is to recognize openly that the Case or Controversy Clause of Article III means different things in different types of litigation. In one “tier” — cases where Congress has made it clear that it has created procedural rights that may be vindicated in court without meeting the usual injury, causation, and redressability requirements — the plaintiff should merely be required to show that he or she falls within the “zone of interests” the statute aims to protect. In all other cases — the other “tier”—existing Article III standing requirements would apply.

Keywords: Lujan, standing, procedural rights, agency action, Article III, case or controversy

Suggested Citation

Lee, Evan Tsen and Ellis, Josephine Mason, The Standing Doctrine's Dirty Little Secret (December 3, 2012). 107 Northwestern L. Rev. 169 (2012); UC Hastings Research Paper No. 13. Available at SSRN: https://ssrn.com/abstract=2027130

Evan Tsen Lee (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Josephine Mason Ellis

affiliation not provided to SSRN

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