Law Commons^™

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 …

Do Seven Members Of Congress Have Article Iii Standing To Sue The Executive Branch?: Why The D.C. Circuit’S Divided Decision In Maloney V. Murphy Was Wrongly Decided In Light Of Two Prior District Court Decisions And Historical Separation Of Powers Jurisprudence, Bradford Mank

Faculty Articles and Other Publications

The D.C. Circuit’s divided decision in Maloney v. Murphy granting standing to minority party members of the House Oversight Committee appears questionable in light of two prior district court decisions in Waxman and Cummings that had denied standing in similar circumstances. Most importantly, Maloney is inconsistent with Supreme Court precedent regarding standing for individual members of Congress. In Raines v. Byrd, the Supreme Court held that individual members of Congress generally do not have standing to enforce institutional congressional interests such as whether a statute is constitutional, but that one or both Houses of Congress must sue as an institution. …

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, …

Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Byrd V. U.S. (U.S. June 12, 2017) (No. 16- 1371)., Janet Moore

Faculty Articles and Other Publications

More than two centuries after it was ratified, the Fourth Amendment continues to protect the “right of the people to be secure” from “unreasonable searches.” U.S. Const. amend. IV. Modern technological advances and social developments do not render our rights “any less worthy of the protection for which the Founders fought.” Riley v. California, 134 S. Ct. 2473, 2494–95 (2014). This Court plays an essential role in ensuring that the Fourth Amendment retains its vitality as an indispensable safeguard of liberty, even as Americans dramatically change the ways they organize their everyday affairs. This case calls for the Court to …

Article Iii Standing For Private Plaintiffs Challenging Greenhouse Gas Regulations, Bradford Mank

Faculty Articles and Other Publications

An important unresolved question is whether non-state plaintiffs have standing under Article III of the U.S. Constitution to sue in federal courts in climate change cases. In Massachusetts v. EPA, the Supreme Court held a state government could sue the U.S. government to address climate change issues, and suggested, but did not decide, that private litigants might have lesser rights than states. In Washington Environmental Council v. Bellon, the Ninth Circuit held that private groups did not have standing to challenge Washington State’s failure to regulate greenhouse gas (GHG) emissions from five oil refineries, and implied that private plaintiffs may …

Data Breaches, Identity Theft And Article Iii Standing: Will The Supreme Court Resolve The Split In The Circuits, Bradford Mank

Faculty Articles and Other Publications

In data breach cases, the lower federal courts have split on the question of whether the plaintiffs meet Article III standing requirements for injury and causation. In its 2013 decision Clapper v. Amnesty International USA, the Supreme Court, in a case involving alleged electronic surveillance by the U.S. government’s National Security Agency, declared that a plaintiff alleging that it will suffer future injuries from a defendant’s allegedly improper conduct must show that such injuries are “certainly impending.” Since the Clapper decision, a majority of the lower federal courts addressing “lost data” or potential identity theft cases in which there is …

Does A House Of Congress Have Standing Over Appropriations?: The House Of Representatives Challenges The Affordable Care Act, Bradford Mank

Faculty Articles and Other Publications

In U.S. House of Representatives v. Sylvia Matthews Burwell, the District Court for D.C. in 2015 held that the House of Representatives has Article III standing to challenge certain provisions of the Affordable Care Act as violations of the Constitution’s Appropriations Clause. The Supreme Court’s jurisprudence on legislative standing is complicated. The Court has generally avoided the contentious question of whether Congress has standing to challenge certain presidential actions because of the difficult separation-of-powers concerns in such cases. In Raines v. Byrd, the Court held that individual members of Congress generally do not have Article III standing by simply holding …

The Supreme Court Acknowledges Congress’ Authority To Confer Informational Standing In Spokeo, Inc. V. Robins, Bradford Mank

Faculty Articles and Other Publications

The Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins does not fully resolve when an intangible injury such as a defendant’s misreporting of a plaintiff’s personal information is sufficient to constitute a “concrete injury” for Article III standing. However, the Spokeo decision makes clear that Congress has a significant role in defining intangible injuries for Article III standing beyond what was considered an injury under the American or English common law. Some commentators had thought Spokeo might overrule the Court’s prior decisions in Akins and Public Citizen, which both held that a plaintiff may have standing based solely upon …

Standing To View Other People's Land: The D.C. Circuit's Divided Decision In Sierra Club V. Jewell, Bradford Mank

Faculty Articles and Other Publications

In its divided 2014 decision in Sierra Club v. Jewell, the D.C. Circuit held that plaintiffs who observe landscape have Article III standing to sue in federal court to protect those views even if they have no legal right to physically enter the private property that they view. The D.C. Circuit’s decision could significantly enlarge the standing of plaintiffs to sue federal agencies or private parties over changes to private lands that the plaintiffs have no right to enter. Because the Supreme Court has inconsistently applied both strict and liberal approaches to standing, it is difficult to predict how it …

Does United States V. Windsor (The Doma Case) Open The Door To Congressional Standing Rights?, Bradford Mank

Faculty Articles and Other Publications

In rare cases, a President refuses to defend a statute he believes is unconstitutional. The law is unclear whether Congress or either House of Congress has Article III standing to defend a statute that the President refuses to defend. In United States v. Windsor, the Supreme Court in 2013 addressed the constitutionality of the Defense of Marriage Act (DOMA). The Obama Administration took the middle position of not defending DOMA, but still enforcing it despite its view that the statute was unconstitutional to assist federal courts in reviewing the constitutionality of the statute. It was unclear whether an appeal was …

Prudential Standing Doctrine Abolished Or Waiting For A Comeback?: Lexmark International, Inc. V. Static Control Components, Inc., Bradford Mank

Faculty Articles and Other Publications

In the Supreme Court’s 2014 decision in Lexmark International, Inc. v. Static Control Components, Inc., Justice Scalia writing for a unanimous Court partially achieved his goal of abolishing the prudential standing doctrine. First, the Court concluded that the zone of interests test concerns whether Congress has authorized a particular plaintiff to sue and is not a prudential standing question despite several Court decisions classifying it as such. However, there is a continuing controversy in the D.C. Circuit about applying the test to suits by competitors, especially in environmental cases. The better approach is to allow competitor standing in at least …

No Article Iii Standing For Private Plaintiffs Challenging State Greenhouse Gas Regulations: The Ninth Circuit's Decision In Washington Environmental Council V. Bellon, Bradford Mank

Faculty Articles and Other Publications

In Washington Environmental Council v. Bellon, the Ninth Circuit recently held that private plaintiffs did not have standing to sue in federal court to challenge certain state greenhouse gas (GHG) regulations because the plaintiffs failed to allege that the emissions were significant enough to make a “meaningful contribution” to global GHG levels. By contrast, in Massachusetts v. EPA, the Supreme Court held a state government had standing to sue the federal government for its failure to regulate national GHG emissions because states are “entitled to special solicitude in our standing analysis.” Massachusetts implied but did not decide that private parties …

Is Prudential Standing Jurisdictional?, Bradford Mank

Faculty Articles and Other Publications

The Supreme Court has clearly treated the Constitution’s Article III standing requirements as mandatory jurisdictional hurdles that a plaintiff must meet for each form of relief sought before federal courts may consider the merits of a case. But the Supreme Court has never squarely held that prudential standing is a jurisdictional issue that must be decided before the merits in every single case. A 1975 Supreme Court decision suggested in dicta that prudential standing doctrine plays a crucial role in preventing federal courts from addressing political questions, but a 1984 Court decision implied in dicta that prudential standing is less …

Clapper V. Amnesty International: Two Or Three Competing Philosophies Of Standing Law?, Bradford Mank

Faculty Articles and Other Publications

In its 2013 decision Clapper v. Amnesty International, the Supreme Court invoked separation of powers principles in holding that public interest groups alleging that the Government was spying on their foreign clients failed to demonstrate Article III standing because they could not prove that the future surveillance injury that they purportedly feared was “certainly impending.” Justice Breyer’s dissenting opinion argued “commonsense” suggested that the Government was spying on the plaintiffs’ foreign clients and proposed a “reasonable” or “high” probability standing test. Implicitly, the Clapper decision presented a third approach to standing decisions. In footnote 5, the majority opinion acknowledged that …

Judge Posner’S 'Practical' Theory Of Standing: Closer To Justice Breyer’S Approach To Standing Than Justice Scalia’S, Bradford Mank

Faculty Articles and Other Publications

In American Bottom Conservancy v. U.S. Army Corps of Engineers, Judge Richard Posner of the Seventh Circuit questioned three different grounds articulated by the U.S. Supreme Court for the constitutional doctrine of standing in federal courts and instead argued that the “solidest grounds” for the doctrine of standing are “practical.” In part because of his self-described “pragmatic” approach to legal reasoning, Judge Posner’s maverick views may have led Republican presidents to pass him over for being nominated to the Supreme Court in favor of less brilliant but more predictable conservative judges. Judge Posner’s pragmatic or practical approach to standing …

Informational Standing After Summers, Bradford Mank

Faculty Articles and Other Publications

In its recent The Wilderness Society v. Rey decision, the Ninth Circuit addressed the difficult question of when a statute may establish a right to informational standing. The D.C. Circuit and the Sixth Circuit had previously reached different conclusions about whether environmental statutes promoting public participation or requiring environmental assessments in certain circumstances create a right to informational standing. The Ninth Circuit in its The Wilderness Society decision interpreted the Supreme Court’s 2009 decision in Summers v. Earth Island Institute, which explicitly narrowed procedural rights standing, as implicitly narrowing standing rights in general and concluded that general notice and …

Reading The Standing Tea Leaves In American Electric Power V. Connecticut, Bradford Mank

Faculty Articles and Other Publications

In American Electric Power v. Connecticut (AEP), the U.S. Supreme Court by an equally divided vote of four to four affirmed the Second Circuit’s decision finding standing and jurisdiction in the case. Even though it did not announce the identities of the justices who voted for standing and against standing, the AEP decision took the unusual step of providing some explanation for how the Court divided on the standing question, and, as a result, provided important information about the positions of the justices on the issue. While it is not binding as a decision for the lower courts except …

Standing In Monsanto Co. V. Geertson Seed Farms: Using Economic Injury As A Basis For Standing When Environmental Harm Is Difficult To Prove, Bradford Mank

Faculty Articles and Other Publications

Many of the Supreme Court’s important standing cases have involved environmental disputes. Most recently, in 2010, the Court again addressed standing in an environmental dispute, Monsanto Co. v. Geertson Seed Farms. In Monsanto, the Court did not announce a new standing doctrine. Nevertheless, the Court recognized that an environmental plaintiff may sue without proof of actual environmental harm if it can demonstrate that he or she may suffer economic losses from testing and mitigation measures related to a threatened harm. During the oral argument in Monsanto, Justice Scalia expressed skepticism that the plaintiffs could prove that the …

Standing For Private Parties In Global Warming Cases: Traceable Standing Causation Does Not Require Proximate Causation, Bradford Mank

Faculty Articles and Other Publications

This Article argues courts should apply a relatively liberal approach in deciding standing issues for private plaintiffs pursuing climate change suits even if courts ultimately conclude that it is inappropriate to grant relief on the merits to those same plaintiffs because the Supreme Court has clearly declared that standing is a preliminary question that should be treated separately from decisions on the merits and standing causation requires less proof than proximate causation on the merits. The Supreme Court in its 2007 decision in Massachusetts v. EPA held that a state had standing under Article III of the U.S. Constitution to …

Summers V. Earth Island Institute Rejects Probabilistic Standing, But A 'Realistic Threat' Of Harm Is A Better Standing Test, Bradford Mank

Faculty Articles and Other Publications

In Summers v. Earth Island Institute, the Supreme Court recently rejected Justice Breyer’s dissenting opinion’s proposed test for organizational standing based upon the statistical probability that some of an organization’s members will likely be harmed in the near future by a defendant’s allegedly illegal actions. Implicitly, however, the Court had recognized some form of probabilistic standing in Friends of the Earth v. Laidlaw, which found standing where plaintiffs avoid recreational activities because of “reasonable concerns” about future health injuries from pollution; Summers did not overrule Laidlaw. There is an inherent tension between the Summers and Laidlaw decisions. This Article applies …

Revisiting The Lyons Den: Summers V. Earth Island Institute's Misuse Of Lyons's Realistic Threat Of Harm Standing Test, Bradford Mank

Faculty Articles and Other Publications

In Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009), the majority and dissenting opinions disagreed about how to apply the “realistic threat” test set forth in Los Angeles v. Lyons, 461 U.S. 95, 107 (1983)). According to Justice Scalia’s majority opinion in Summers, the plaintiff organizations did not have standing to obtain injunctive relief because they failed to prove that their members were likely in the near future to hike on government land on which the Forest Service conducted allegedly illegal sales of timber without public notice and comment and that the facts alleged by …

Standing And Statistical Persons: A Risk-Based Approach To Standing, Bradford Mank

Faculty Articles and Other Publications

This Article proposes that any individual has standing to challenge government action that exposes her to an increased lifetime risk of 1 in 1 million or greater of death or serious injury. Because most regulation involves statistical probabilities of harm, a plaintiff challenging a government regulatory action or inaction as insufficiently protective cannot demonstrate that he or she would likely be harmed by the allegedly inadequate regulation, but merely that a different regulation might reduce the probability of future harm. The beneficiaries of a suit seeking better government regulation are, therefore, statistical persons rather than identifiable persons. By contrast, standing …

Standing And Future Generations: Does Massachusetts V. Epa Open Standing For Generations To Come?, Bradford Mank

Faculty Articles and Other Publications

Many issues, especially potential environmental catastrophes caused by climate change, affect not just the living, but also future generations. The bias in our political system against addressing the interests of future generations poses serious obstacles in solving long-term environmental problems such as global warming. Because future generations cannot vote, unelected federal judges are more suited to protect their interests than the political branches.

An important question is whether anyone has standing to sue on behalf of future generations in the federal courts. The Supreme Court's Article III standing test requires plaintiffs to demonstrate that they have personally suffered an injury …

Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts V. Epa's New Standing Test For States, Bradford Mank

Faculty Articles and Other Publications

In Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the Supreme Court held that carbon dioxide (CO²) and other greenhouse gases (GHGs) are air pollutants within the meaning of the Clean Air Act (CAA). Although its decision on the merits is important, the Court's conclusion that Massachusetts had standing to file suit because states are entitled to more lenient standing criteria may have a greater impact in the long-term on legal doctrine. In Massachusetts, the Supreme Court for the first time clearly gave greater standing rights to states than ordinary citizens. The Court, however, failed to explain to what extent …