Injury In Fact, Transformed

19 Pages Posted: 16 Mar 2022

See all articles by Cass R. Sunstein

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: March 11, 2022


Over the course of the last half-century, the “injury in fact” test has been radically transformed. It began as a bold and essentially lawless effort, led by Justice William O. Douglas, to expand the category of persons entitled to bring suit, and in the process to open federal courts to a wide range of people, including the beneficiaries of regulatory statutes. It is now achieving precisely the opposite goal: The Court has sharply limited the category of legally cognizable “injuries,” requiring them to be identical or akin to those recognized at the common law (or by the Constitution itself). The result is severely to restrict Congress’ power to grant standing to regulatory beneficiaries, by creating constitutional limits on its authority to create new rights and to allow people to sue to protect those rights. Ironically, the Court has restricted Congress’ power by developing public law principles on private law foundations – foundations that public law was specifically meant to repudiate. The transformation is an effort to invent a tradition; the new understanding of standing (and of Articles III and II) has no roots in the Constitution, and it is disconnected from standard sources of constitutional law. The best path forward is for the Court to make it clear that while traditionally recognized harms are a legitimate basis for standing, Congress has broad authority to create rights, and causes of action, lacking clear analogs at common law. Article III does not enact Mr. William Prosser’s Law of Torts.

Keywords: injury in fact, standing, Article III, Lochner

JEL Classification: K00, K1

Suggested Citation

Sunstein, Cass R., Injury In Fact, Transformed (March 11, 2022). Available at SSRN: or

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

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Harvard University - Harvard Kennedy School (HKS) ( email )

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