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Full-Text Articles in Law
Standing To View Other People's Land: The D.C. Circuit's Divided Decision In Sierra Club V. Jewell, Bradford Mank
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
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 …
Standing In The Wake Of Statutes, Mark Seidenfeld, Allie Akre
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 …
Reconceptualizing Non-Article Iii Tribunals, Jaime Dodge
Reconceptualizing Non-Article Iii Tribunals, Jaime Dodge
Scholarly Works
The Supreme Court’s Article III doctrine is built upon an explicit assumption that Article III must accommodate non-Article III tribunals in order to allow Congress to “innovate” by creating new procedural structures to further its substantive regulatory goals. In this Article, I challenge that fundamental assumption. I argue that each of the types of non-Article III innovation and the underlying procedural goals cited by the Court can be obtained through our Article III courts. The Article then demonstrates that these are not theoretical or hypothetical solutions, but instead are existing structures already in place within Article III. Demonstrating that the …
Prudential Standing Doctrine Abolished Or Waiting For A Comeback?: Lexmark International, Inc. V. Static Control Components, Inc., Bradford Mank
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 …