Public-Law Litigation at a Crossroads: Article III Standing and 'Tester' Plaintiffs

30 Pages Posted: 8 Sep 2023 Last revised: 3 Apr 2024

See all articles by Rachel Bayefsky

Rachel Bayefsky

University of Virginia School of Law

Date Written: September 7, 2023

Abstract

An upcoming Supreme Court case on Article III standing and disability presents critical questions about the future of litigation that promotes societal change. In Acheson Hotels v. Laufer, scheduled for the 2023 Term, the Court confronts the issue of whether a plaintiff with disabilities has standing to challenge a hotel’s failure to provide accessibility information when the plaintiff lacks concrete plans to visit the hotel. The case raises doctrinal quandaries because it sits atop a fault line between two models of litigation: a “public law” model that permits plaintiffs, often backed by interest groups, to use litigation to advance public aims; and a “private right” model that treats as the default mode of litigation a suit by A against B in tort, property, or contract. This Essay unravels the doctrinal and conceptual threads of Acheson, and it offers proposals for the Court to decide the case in a way that would not broadly undermine public-law litigation.

Keywords: Standing, Constitutional Law, Disability, Federal Courts, Civil Procedure

Suggested Citation

Bayefsky, Rachel, Public-Law Litigation at a Crossroads: Article III Standing and 'Tester' Plaintiffs (September 7, 2023). Virginia Public Law and Legal Theory Research Paper No. 2023-64, New York University Law Review Online, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4565291 or http://dx.doi.org/10.2139/ssrn.4565291

Rachel Bayefsky (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

HOME PAGE: http://www.law.virginia.edu/faculty/profile/yyt5yx/2994875

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