Notice & Comment

A Chance to Clarify Standing, by Andy Hessick

On Monday, the Supreme Court granted certiorari in Spokeo, Inc. v. Robins to resolve a basic question of Article III standing: Does a person has standing to sue to seek redress for the violation of a right, even if he did not suffer any other injury from the rights violation? This is the second time that the Court has agreed to hear this question: The Court granted certiorari on the issue several years ago in First American v. Edwards, but digged the case after argument.

Under current law, a plaintiff has standing if that he has suffered an “injury in fact.” Even though the term “injury in fact” suggests a factual injury like a broken hand, for many years the Court said that the injury required for standing consist of the violation of “statutes creating legal rights”―in other words, that Congress can create rights, and the violation of that right is injury enough. Call this the “rights position.”

But in Lujan v. Defenders of Wildlife, the Court said that “injury in fact” really means a factual injury; the violation of a right is not enough. Congress can’t just create rights whose violation supports standing; but what Congress can do is confer standing by making legally cognizable “de facto harms that were previously inadequate at law.” So, in the Lujan world, not all factual injuries support standing; but Congress can declare that these otherwise inadequate factual injures do support standing. To give an example: say I sue the government for failing to give me money when I demand it. I’m “hurt” by not getting the money, but most everyone would say I don’t have standing. But if Congress enacted a statute entitling me to the money, I would have standing to sue if the government failed to pony up.

Lujan and the rights position are conceptually different, and the justices will probably break into different camps on which path to follow. But it will be interesting to see the degree to which the two positions overlap. Lots of things don’t seem like injuries until the law says they are injuries. So too, some things that seem like obvious injuries today are injuries only because the law says so. It seems obvious that I’m hurt when you go onto my land without permission, but I own land only because the law says I own the land. That the law can make us recognize injuries where we didn’t see them before might mean that what really matters under Lujan is whether Congress conferred a right.

I’ve written about rights and standing before, and so I’m sure that I will have more thoughts on the case as the briefs are filed.

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