The Standing of the United States: How Criminal Prosecutions Show That Standing Doctrine Is Looking for Answers in All the Wrong Places

Authors

Edward A. Hartnett, University of Virginia School of Law

Abstract

The Supreme Court insists that Article III of the Constitution requires a litigant to have standing in order for her request for judicial intervention to constitute a "case" or "controversy" within the jurisdiction of a federal court; it also insists that the "irreducible constitutional minimum" of standing requires (1) that the litigant suffer an "injury in fact"; (2) that the person against whom the judicial intervention is sought have caused the injury; and (3) that the requested judicial intervention redress the injury. The requisite injury in fact, the Court repeatedly declares, must be "personal," "concrete and particularized," and "actual or imminent, not conjectural or hypothetical." In addition, the injury must be more than an "injury to the interest in seeing that the law is obeyed." This requirement has its foundation in the bar against standing to litigate a '"generalized grievance' shared in substantially equal measure by all or a large class of citizens." For a time, the bar on '"generalized grievance[s]"' was viewed as merely a "prudential rule[]," not required by Article III and therefore subject to displacement by Congress. The Supreme Court's 1992 decision in Lujan, however, treated it as a gloss on the injury requirement and rooted in the case or controversy language of Article III. The Court insisted, as an Article III matter, that the injury must be to something more than "every citizen's interest in the proper application of the Constitution and laws," and the litigant must not be "seeking relief that no more directly and tangibly benefits him than it does the public at large."

Recommended Citation

Edward A. Hartnett, The Standing of the United States: How Criminal Prosecutions Show That Standing Doctrine Is Looking for Answers in All the Wrong Places, 97 Mich. L. Rev. 2239 (2019).
Available at: https://repository.law.umich.edu/mlr/vol97/iss7/4