Standing Without Injury

Abstract

It is well-established that injury in fact is an essential element of Article III standing, but should it be? Academics have long criticized the Supreme Court’s standing jurisprudence. These criticisms are now being echoed by federal judges. Judge Kevin Newsom, for one, has suggested existing standing jurisprudence has become ungrounded from constitutional text, incoherent, and administrable. He suggests abandoning injury in fact altogether, and recognizing broad congressional power to authorize causes of action to sue in federal court, subject only to those limits imposed by the executive branch’s obligation to “Take Care” that the laws are faithfully executed. In short, the limits on standing should be found in Article II rather than Article III. This article assess Judge Newsom’s proposal for standing without injury and examines the likely impacts of this approach for various areas of law. Given the increased attention to standing law, and dissatisfaction with existing standing jurisprudence, examining such alternatives to the existing standing framework is timely and important.

Keywords: standing, Article III, injury-in-fact, jurisdiction

JEL Classification: K41