Four Reasons the Supreme Court Should Reconsider Its Article III Standing Doctrine

Publication Title

Ohio State Law Journal Online

Document Type

Article

Publication Date

2024

Abstract

This paper reviews four reasons the Supreme Court should reconsider its long-standing doctrine that Article III of the Constitution prevents federal courts from hearing civil cases unless plaintiffs show that their claims arise out of “injury-in-fact”. The doctrine is (1) incoherent in theory and unworkable in practice, (2) manipulable to serve policy-driven decisions, (3) inconsistent with historical practices in the Founding Era, and (4) not grounded in the text of Article III.

Parts I – III of the paper briefly review judicial decisions and legal scholarship that support or provide perspective on the first three reasons why the Court should reconsider its Article III standing doctrine, with an emphasis on decisions and scholarship from 2021 to the present. These parts particularly benefit from the first author’s attendance in September 2023 at a conference on Article III Standing hosted by the Constitutional Law Institute at the University of Chicago Law School. Part IV is a more extended analysis of the fourth reason, the failure of standing doctrine to be grounded in the text of Article III, drawing on interdisciplinary law-linguistics collaboration in which the authors have participated on this issue going back to 2019.

Recommended Citation

Clark D. Cunningham & Ute Römer-Barron, Four Reasons the Supreme Court Should Reconsider Its Article III Standing Doctrine, 85 Ohio St. L.J. Online 1 (2024), https://moritzlaw.osu.edu/sites/default/files/2024-06/CunninghamRomer-Barron%20-%20Final.pdf.

Volume

85

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