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Unpublished Paper
The Standing Doctrine's Dirty Little Secret
ExpressO (2012)
  • Evan T. Lee
  • Josephine K. Mason

For at least forty years, the Supreme Court has insisted that the standing doctrine’s requirements of imminent injury-in-fact, causation, and redressability are mandated by Article III of the Constitution. During that same time, however, the federal courts have consistently permitted Congress to relax or eliminate altogether the imminence, redressability, and even injury-in-fact requirements in most so-called “procedural rights cases”—cases in which there exists a statutory right to judicial review regardless of the plaintiff’s own personal interest in the matter. After asking whether the Necessary and Proper Clause could augment Article III to close up this gap, we conclude that the best solution is to reinterpret Article III itself. We argue that the Court should simply recognize that the words “cases” and “controversies” mean two different things in the two types of litigation—one in which Congress has bestowed “procedural rights” on those without personal interest, and one for traditional common-law review. We refer to this as a “two tier” interpretation of the “cases” and “controversies” language in Article III. This solution, which is consistent with previous historical analyses, eliminates the need to jettison the Court’s insistence that, as a general matter, “cases” and “controversies” requires a personal stake in the outcome of the dispute, while also eliminating the need to engage in wholesale overruling of standing cases in the procedural rights and agency review areas. This would finally make clear to Congress the actual rules it must follow to use the “private attorneys general” tool to help enforce statutes that benefit society as a whole—particularly in the environmental, climate change, and transparency-in-government areas.

  • standing,
  • injury-in-fact,
  • zone of interests,
  • redressabiliity
Publication Date
February 9, 2012
Citation Information
Evan T. Lee and Josephine K. Mason. "The Standing Doctrine's Dirty Little Secret" ExpressO (2012)
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