Abstract

This Article seeks to assess Judge Newsom’s proposed injury-less approach to standing in federal court. Part I of this Article provides a brief overview of current standing doctrine, the requirements of standing consolidated in Lujan, and how these requirements have been interpreted and applied by the Supreme Court. Part II describes Judge Newsom’s critique of contemporary standing doctrine and outlines the two primary components of his proposed alternative: 1) elimination of the standing requirement in favor of a simple cause-of-action requirement and 2) recognition of an external constraint on standing derived from Article II, rather than Article III.

Part III considers the potential implications of this alternative approach for justiciability across a range of contexts, with a particular emphasis on ways in which the Newsom approach of standing without injury would deviate from current law. It then evaluates the extent to which Judge Newsom’s proposed reformulation of standing would adequately account for the failings of existing doctrine. Eliminating injury and focusing exclusively on whether a given plaintiff has a cause of action to bring their claim would likely simplify the standing inquiry. The theoretical justification for such a requirement may even be more coherent than the contours of the existing Article III inquiry. Imposing Article II limitations on the ability of private litigants to enforce federal law where authorized by Congress, however, could invite the same sort of policy-influenced assessments as does existing law and may turn out to be no more workable than the test left by Lujan. After considering such concerns, the Article concludes.

This abstract has been taken from the article's introduction.

Document Type

Article

Publication Date

2024

Publication Information

59 Wake Forest Law Review 1-60 (2024)

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