Jack Boeglin (Villanova University – Charles Widger School of Law) has posted A Relational Theory of Standing (University of Pennsylvania Law Review, forthcoming) on SSRN. Here is the abstract:
The conventional wisdom is that standing is a matter between plaintiffs and the federal courts. If a plaintiff cannot show that she is a proper party to raise a legal claim, the federal courts lack jurisdiction to hear it. This result, we are told, flows from Article III of the U.S. Constitution, which safeguards the separation of powers by limiting the federal courts to hearing “Cases” and “Controversies.”
This Article tells a different story. It focuses on how standing governs when plaintiffs may hale defendants into federal court, rather than when the federal courts have jurisdiction to hear plaintiffs’ claims. It suggests that standing finds firmer support in principles of prudence, equity, due process, and governmental immunity than it does in the text of Article III. And it posits that standing often functions less as a tool to enforce the separation of powers than as a judicial mechanism to protect defendants from the burdens of “unfair” litigation (attorney’s fees, settlement pressure, reputational harm, and exposure to judicial remedies).
This “relational” account of standing solves doctrinal mysteries that have resisted explanation under the conventional account. It also has transformative implications for how standing—and the related doctrines of mootness and ripeness—should be litigated in federal (and state) courts.
Highly Recommended!
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