How to Sue Without Standing: The Constitutionality of Citizen Suits in Non-Article Iii Tribunals

48 Pages Posted: 18 Sep 2006  

David Krinsky

Williams & Connolly LLP

Abstract

In recent years, the "injury-in-fact" standing requirement of Article III has frequently impeded attempts by concerned citizens and public interest groups to challenge government actions in federal court.

This article proposes a way in which "citizen suits" - lawsuits brought by plaintiffs who wish to challenge perceived illegalities that affect the public as a whole - can be given a federal forum. It argues that, with some limitations, Congress has authority to authorize pure citizen suits in Article I tribunals, and discusses the (surmountable) obstacles that such fora pose.

After discussing the constitutionality of citizen suits in Article I tribunals, the article then turns to precedents that shed light on how such tribunals might function. It highlights two, one in the United States., one abroad. In the United States, the advisory opinions of the U.S. Court of Federal Claims are a little-known example of "cases" without standing in an Article I tribunal today. In Australia - which, though it obviously follows a different constitution with different requirements, has a government similar in structure to the United States' - the Administrative Appeals Tribunal is a model for how generalized grievances with government affairs might be aired in a court-like setting.

In short, the U.S. Constitution permits citizen suits - just not in Article III courts.

Keywords: standing, Article III, Article I, Article I courts, Australia, citizen suits

Suggested Citation

Krinsky, David, How to Sue Without Standing: The Constitutionality of Citizen Suits in Non-Article Iii Tribunals. Case Western Reserve Law Review, Vol. 57, 2006. Available at SSRN: https://ssrn.com/abstract=930836

David Krinsky (Contact Author)

Williams & Connolly LLP ( email )

725 Twelfth Street
N.W.
Washington, DC, 20005
United States

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