Standing To Sue In The Absence Of Prosecution: Can a Case Be Too Controversial for Case or Controversy?

David T. Hardy

Abstract

The Supreme Court has recognized that, except in highly unusual situations, a plaintiff has “harm in fact,” and thus standing to sue, if a criminal statute outlaws conduct in which he intends to engage and which is arguably within the protections of the Constitution. Three Circuits have, however, evolved contradictory strings of caselaw, in which certain challenges are assessed in accord with the Supreme Court’s teachings, while other, indistinguishable, challenges are subjected to much stricter standards, standards which are almost impossible to meet. The Circuits rarely attempt to reconcile the two sets of decisions, and when they do, the resolution is cursory and lacking in reason. In two of the Circuits, there has at least been an effort to narrow the caselaw which is not in accord with Supreme Court precedent.