The Case Against Prudential Standing: Examining the Courts' Use of Prudential Standing Before and After Lexmark

57 Pages Posted: 5 May 2018 Last revised: 14 May 2018

See all articles by Kylie Chiseul Kim

Kylie Chiseul Kim

Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C.

Date Written: April 9, 2018


Ever since jurists introduced the idea that a court must be prudent in exercising its power, courts have toiled to understand what this prudence requires. Courts have developed different definitions of prudence and classified these definitions under the single rubric of prudential standing. An investigation into the origins of prudential standing reveals that prudential standing is an anachronism, a vestige of a time before courts began attributing the requirement for a “real, earnest, and vital controversy between individuals”—the adverseness requirement—to Article III, Section 2 of the Constitution. During that time, courts prevented the creation of law in the absence of adverse parties in order to self regulate, or to place a “prudential” limit on, the expansion of their power. With time, courts began to attribute the adverseness requirement to the “case or controversy” limitation in Article III, Section 2. And the “standing” requirement was a means to assure this adverseness. Even after the change, however, undiscerning courts continue to use prudential standing and characterize the adverseness requirement as a prudential check on their powers.

The continued use of prudential standing obscures our understanding of the words standing and jurisdiction. Courts use standing in place of right to sue or cause of action and conclude that these ideas must implicate their jurisdiction. Also, the use of prudential standing causes courts to mishandle cases. Although review for prudential standing often involves an evaluation of the merits of a claim, courts during this review use procedures available only during the evaluation of justiciability—whether a court may evaluate the merits of a claim. Specifically, courts (1) review for prudential standing sua sponte; (2) review for prudential standing at any time, even for the first time on appeal; and (3) review for prudential standing using any information, even from beyond the pleadings. And upon finding that a claimant lacks prudential standing, courts dismiss the claim without prejudice, even if the claim has merit given the procedural protections afforded to it at that stage in the proceedings.

The only solution to the problems caused by prudential standing is to eliminate the concept. Although many have suggested other solutions—including removing the “jurisdictional implication” of prudential standing and eliminating constitutional standing—none have proved successful in ridding these problems.

Justice Scalia had long criticized prudential standing. In the 1992 Lujan decision, he assigned a definition to standing that prevented labeling certain categories of prudential standing as issues of standing. Then in the 2014 Lexmark decision, he affirmatively removed the label of prudential standing from one of the categories. After Lexmark and Justice Scalia’s subsequent death, however, lower courts have continued to use prudential standing. Notably, in the 2017 Knick decision, the Third Circuit held that the plaintiff in that case had neither constitutional nor prudential standing. Also, in the 2017 International Refugee Assistance Project decision, the Fourth Circuit determined that the plaintiffs in that case had prudential standing. Finally, in the 2017 In re Apple iPhone Antitrust Litigation, the Ninth Circuit determined that the plaintiffs in that case had “antitrust standing,” a variation of prudential standing’s rule against asserting an interest outside the zone of interests protected by the statute invoked—the very category of prudential standing that Lexmark eliminated. This article aims to reignite the importance of eliminating prudential standing and to propose ways to achieve this elimination. Specifically, this article advocates the use of correct definitions for jurisdiction, for standing, for a cause of action, for a right to sue, and for a claim for relief. Also, this article advocates the use of correct rules of civil procedure to enforce the rules currently labeled as prudential standing.

Keywords: constitutional law, prudential standing, standing, jurisdiction, generalized grievance, zone of interests, cause of action, Scalia, Lujan, Lexmark, Knick

Suggested Citation

Kim, Kylie Chiseul, The Case Against Prudential Standing: Examining the Courts' Use of Prudential Standing Before and After Lexmark (April 9, 2018). Kylie Chiseul Kim, The Case Against Prudential Standing: Examining the Courts' Use of Prudential Standing Before and After Lexmark, 85 Tenn. L. Rev. 303 (2017), Available at SSRN:

Kylie Chiseul Kim (Contact Author)

Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. ( email )

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United States

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