Robert Pushaw (Pepperdine University - School of Law) has posted Fortuity and the Article III 'Case': A Critique of Fletcher's 'The Structure of Standing' (Alabama Law Review, Vol. 65, No. 289, 2013) on SSRN. Here is the abstract:
25 years after William A. Fletcher wrote “The Structure of Standing,” Robert Pushaw builds upon Fletcher’s theory of standing and offers an alternative. Pushaw argues that Article III's text, drafting and ratification history, and early implementation -- materials that Professor Fletcher explicitly declined to consider -- reveal a basic and universally applicable standing principle. Standing should hinge on whether the plaintiff is presenting a true Article III “Case,” which requires a showing that her federal legal rights have been invaded fortuitously (i.e., involuntarily as a result of a chance occurrence) so that she can legitimately seek a judicial declaration of the law. Restricting federal courts to their Article III role of expounding federal law only as needed to exercise their “judicial Power” to decide genuine “Cases” helps implement the Constitution's system of separation of powers.
Pushaw’s theory that only “accidental” plaintiffs have standing to bring “Cases” leads him to modify Professor Fletcher's approach in two key ways. First, whereas Fletcher contended that Congress has plenary power to confer standing to vindicate statutory rights, Pushaw would accord such legislative judgments only a strong presumption of constitutionality -- but one that can be overcome in certain circumstances where blind judicial deference threatens separation of powers. Second, Pushaw agrees with Fletcher that particular constitutional clauses implicitly suggest who can enforce them and that Congress cannot grant standing more generously. Pushaw would add, however, that plaintiffs who bring “Cases” arising under the Constitution must demonstrate that their constitutional rights have been violated by happenstance events beyond their control.
Part I of the article describes modern standing law and identifies its serious flaws. Part II discusses Professor Fletcher's proposed solution to these problems. Part III evaluates his thesis in light of the intervening twenty-five years of standing cases and scholarship. Part IV sets forth Pushaw’s “accidental plaintiff” theory of standing as a more practical and historically grounded alternative.
RELATED: The Supreme Court seems likely to grant certitorari to review this case at its conference at the end of this month. The question presented is:
Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.
(My prediction is based on the fact that the Court previously granted certiorari in a very similar case, First American Financial Corp. v. Edwards, which it then dismissed without reaching the merits. See here, p. 2).