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Constitutional Law

2010

Southern Methodist University

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Zoya's Standing Problem, Or, When Should The Constitution Follow The Flag?, Jeffrey Kahn Jan 2010

Zoya's Standing Problem, Or, When Should The Constitution Follow The Flag?, Jeffrey Kahn

Faculty Scholarship

Some federal courts have devised a new test of prudential standing that they use to dismiss suits filed by foreign plaintiffs alleging unlawful conduct by American officials abroad, even when these cases involve matters that may have nothing to do with foreign affairs, national security, or terrorism. Rather than decide the case on its merits or dismiss it on any number of legitimate grounds, the complaint is dismissed because the plaintiff lacks a “prior substantial connection” to the United States.

I identify and critique this strange but proliferating test of standing. First, it is inconsistent with any theoretical view of ...