Notice & Comment

Ad Law Reading Room: “Standing Without Injury,” by Jonathan Adler

Today’s Ad Law Reading Room is “Standing Without Injury,” by Jonathan H. Adler, which is forthcoming in the Wake Forest Law Review. Here is the abstract:

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, the limits on standing should be found in Article II rather than Article III. This article assess Judge Newsom’s proposal for standing without injury and examines the likely impacts of this approach for various areas of law. Given the increased attention to standing law, and dissatisfaction with existing standing jurisprudence, examining such alternatives to the existing standing framework is timely and important.

In recent years, some fundamental aspects of the Supreme Court’s Article III standing jurisprudence have been called into question by perhaps unexpected voices. One of the most prominent such voices has been Judge Newsom of the United States Court of Appeals for the Eleventh Circuit. Judge Newsom has challenged the assumption that the Constitution requires plaintiffs to demonstrate “injury in fact” in order to invoke the jurisdiction of the federal courts. At the same time, Newsom argues, Article II may place limits on Congress’s ability to outsource enforcement authority to private parties.

Enter “Standing Without Injury.” Adler’s article is valuable in part for its lucid introduction to Judge Newsom’s theory, the Article III component of which builds on prior academic work by (among others) Judge William Fletcher of the Ninth Circuit. The real contribution of Adler’s article, however, is its careful analysis of how Judge Newsom’s reforms might work themselves out in various areas long touched by constitutional standing rules. And in many such contexts, the answers are somewhat murky. Newsom’s theory could relatively easily be applied to some questions, but especially with respect to the limitations Newsom would find in Article II, Adler argues, the resulting doctrine might well suffer from administrability problems similar to that which plague the current standing inquiry. Your mileage may vary on how much that should matter when it comes to fashioning the constitutional rules-of-the-road, but it strikes me as very good to know.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.

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