State Standing’s Uncertain Stakes

30 Pages Posted: 23 Apr 2019 Last revised: 30 Jul 2019

See all articles by Aziz Z. Huq

Aziz Z. Huq

University of Chicago - Law School

Date Written: April 10, 2019

Abstract

This paper investigates the ‘stakes’ of state standing. By ‘stakes,’ I mean the practical consequences of resolving, one way or another, the unsettled doctrinal choices respecting to the ability of states to initiate a matter in federal courts. Why, that is, does state standing mater? An inquiry into stakes can usefully proceed step-wise. A first task is to identify the subset of state-standing cases that presently elicit division among the Justices. A second task is to articulate the interesting normative consequences of narrowing or widening the Article III gauge in this contested class. This inquiry illuminates the multifarious character of downstream consequences plausibly related to state standing doctrine. For example, it is already a familiar claim in litigation over this Article III question that a denial of state standing will lead to an issue’s nonjusticiability. My analysis suggests we should be a bit skeptical of that notion. Instead, it suggests the value of attending to other, less familiar institutional-design implications, such as effects on the structural constitution and the incentives of state officials.

Keywords: standing; state standing

Suggested Citation

Huq, Aziz Z., State Standing’s Uncertain Stakes (April 10, 2019). Notre Dame Law Review, 2019; U of Chicago, Public Law Working Paper No. 710. Available at SSRN: https://ssrn.com/abstract=3369963

Aziz Z. Huq (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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