Law Commons^™

Standing Without Injury, Jonathan Adler

Faculty Publications

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, …

Did The Supreme Court In Transunion V. Ramirez Transform The Article Iii Standing Injury In Fact Test?: The Circuit Split Over Ada Tester Standing And Broader Theoretical Considerations, Bradford Mank

Faculty Articles and Other Publications

Some commentators have criticized the Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins and especially the Court’s 2021 decision in TransUnion LLC v. Ramirez for limiting Congress’ authority to confer standing by statute. For example, in his article, Injury in Fact Transformed, Professor Cass Sunstein argues that TransUnion is a “radical ruling” that uses the injury in fact standing requirement to limit the authority of Congress to enact only statutes that address harms that have a close relationship to traditional or common law harms. By contrast, Professor Ernst Young argues that the Supreme Court’s injury in fact doctrine is …

Due Process For Article Iii—Rethinking Murray's Lessee, Kent H. Barnett

Scholarly Works

The Founders sought to protect federal judges’ impartiality primarily because those judges would review the political branches’ actions. To that end, Article III judges retain their offices during “good behaviour,” and Congress cannot reduce their compensation while they are in office. But Article III has taken a curious turn. Article III generally does not prohibit Article I courts or agencies from deciding “public rights” cases, i.e., when the government is a party and seeking to vindicate its own actions and interpretations under federal law against a private party. In contrast, Article III courts generally must resolve cases that concern “private …

State Standing In United States V. Texas: Opening The Floodgates To States Challenging The Federal Government Or Proper Federalism?, Bradford Mank

Faculty Articles and Other Publications

In United States v. Texas, the Supreme Court by an equally divided vote, 4 to 4, affirmed the decision of the U.S. Fifth Circuit Court of Appeals that the State of Texas had Article III standing to challenge in federal court the Department of Homeland Security’s (DHS) directive establishing a Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program to grant lawful immigration status to millions of undocumented immigrants. A serious question is whether state standing in this case will open the floodgates to allow states to challenge virtually every federal executive action. On the other hand, …

Standing In The Wake Of Statutes, Mark Seidenfeld, Allie Akre

Scholarly Publications

In Lujan v. Defenders of Wildlife, the Supreme Court held that when Congress creates a legal interest to see that the law is followed, the deprivation of that interest, without more, is insufficient to allow a plaintiff to meet Article III’s standing requirements. Lujan created significant uncertainty about Congress’s ability to influence judicial standing inquiries by creating statutory rights, especially in light of Justice Kennedy’s concurrence and the majority’s footnote seven. This Article argues that Kennedy’s concurrence and footnote seven are best explained by recognizing that Congress is institutionally superior to courts in evaluating the gravity of likely harms …

To The Victor Goes The Toil -- Remedies For Regulated Parties In Separation-Of-Powers Litigation, Kent H. Barnett

Scholarly Works

The U.S. Constitution imposes three key limits on the design of federal agencies. It constrains how agency officers are appointed, the extent of their independence from the President, and the range of issues that they can decide. Scholars have trumpeted the importance of these safeguards with soaring rhetoric. And the Supreme Court has permitted regulated parties to vindicate these safeguards through implied private rights of action under the Constitution. Regulated parties, for their part, have been successfully challenging agency structure with increased frequency. At the same time, regulated parties, courts, and scholars have largely ignored the practical question of “structural …

Slides: Risk Management Strategies Of The Upper Basin: Addressing Potential Shortages, Eric Kuhn

Navigating the Future of the Colorado River (Martz Summer Conference, June 8-10)

Presenter: Eric Kuhn, Colorado River Water Conservation District

15 slides

Massachusetts V. Epa: Breaking New Ground On Issues Other Than Global Warming, Amy J. Wildermuth, Kathryn A. Watts

Articles

In this essay, we consider the long-term legal significance of the Supreme Court's decision in Massachusetts v. EPA, concluding that the case is likely to have a significant impact on two doctrinal areas of the law: (1) the standing of states; and (2) the standard of review applied to denials of petitions for rulemaking. First, although we have some questions about the Court's reasoning, we are encouraged to see the beginning of a framework for evaluating state standing based on the interest of the state in the litigation. Second, with respect to judicial review of agency inaction in the rulemaking …

Blackletter Statement Of Federal Administrative Law: Standing, Cynthia R. Farina

Cornell Law Faculty Publications

No abstract provided.

Can Consent Waive Absolute Rights To An Article Iii Court (85-621) (85-642), Ronald Filler

Articles & Chapters

No abstract provided.