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Scalia's Legacy: Originalism and Change in the Law of Standing

6 Brit. J. Am. Leg. Stud. 85 (2017)

Northwestern Public Law Research Paper No. 17-22

24 Pages Posted: 25 Aug 2017  

Date Written: August 24, 2017

Abstract

Perhaps no single Justice fashioned as many changes to the law of standing as that most gifted originalist, Antonin Scalia. It was Justice Scalia who first deployed twentieth century standing rules to invalidate a citizen suit provision; who promoted the prudential rule against the adjudication of generalized grievances to constitutional status; who pressed to constitutionalize the adverse-party rule; who reconfigured informer litigation to preserve the injury-in-fact requirement; and who recently re-packaged the Court’s old prudential standing doctrine as a merits-based inquiry into the plaintiff’s statutory right to sue. That he has done so much to re-work modern litigation in the name of fidelity to the workways of eighteenth century lawyers “in the English courts at Westminster” testifies to his considerable rhetorical skills. In this essay, I evaluate Justice Scalia’s contributions to this important body of jurisdictional law and then step back to consider his legacy.

Keywords: Standing, Originalism, Justice Scalia

JEL Classification: K10, K19, K40, K49

Suggested Citation

Pfander, James E., Scalia's Legacy: Originalism and Change in the Law of Standing (August 24, 2017). 6 Brit. J. Am. Leg. Stud. 85 (2017); Northwestern Public Law Research Paper No. 17-22. Available at SSRN: https://ssrn.com/abstract=3025577

James Pfander (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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