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Kylie Chiseul Kim: The Case Against Prudential Standing (with my Applause)
Michael Ramsey

Kylie Chiseul Kim (Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C.) has posted The Case Against Prudential Standing: Examining the Courts' Use of Prudential Standing Before and After Lexmark (Tennessee Law Review, forthcoming) on SSRN.  Here is the abstract:

Through Lujan and Lexmark, Justice Scalia constructed one of his greatest legacies: a sound and manageable definition of standing. However, a threat to this legacy, prudential standing, persists after his death. Lujan defines standing—in simplified terms—as injury, causation, and redressability. Lexmark undermines prudential standing, which exceeds Lujan’s definition of standing and which encompasses the rule against assertion of a generalized grievance, assertion of an interest outside the zone of interests protected by the law invoked, and assertion of the right of a third party. Despite these cases, lower courts continue to use prudential standing, confusing standing’s definition. Arguing for a definitive end to prudential standing, this article explains its creation as a misinterpretation of precedent and explains the problem inherent in each rule of prudential standing. In addition to arguing for strict adherence to Lujan and Lexmark, this article proposes other means to eliminate prudential standing—(1) using the correct definitions for jurisdiction, for standing, for a right to sue, for a cause of action, and for a claim for relief and (2) using correct procedural principles to enforce the otherwise valid rules mislabeled as prudential standing.

(Via Larry Solum at Legal Theory Blog).

Agreed.  Here is my post on Lexmark from 2014: Lexmark v. Static Control: The End of Prudential Standing?  Excerpts:

[Lexmark] is a welcome clean-up of standing doctrine that’s exactly right on rule-of-law grounds.  A constitutional statute is by Article VI the supreme law of the land, binding on the courts.  If such a statute authorizes a claim, the courts must apply the statute.  The Court’s invention of nebulous non-statutory “prudential” barriers to a congressionally authorized suit lets the Court pick and choose which claims to hear without any basis for such a power in either the Constitution or laws made “in Pursuance thereof.”


Lexmark parallels the Court’s similarly welcome cut-back of the political question doctrine in Zivotofsky v. Clinton (discussed here).  Again, the political question doctrine (in its pre-Zivotofsy version) allowed courts to invent reasons not to hear a case – reasons that lacked foundation in either a statute or the Constitution but instead arose from the court’s own intuitive sense of whether hearing the case would be a bad idea.

Judicial conservatives tend to like these doctrines, but they shouldn’t.   Doctrines that overtly allow courts to dismiss claims on grounds of judicial convenience undermine the rule of law, even if (in a particular case) they might allow a court to get rid of a claim judicial conservatives don’t like. And these doctrines are inconsistent with the Constitution’s original meaning, which grants no power to the courts to limit the effect of Article VI’s supreme law.

RELATED:  Also on SSRN, from Jed Handelsman Shugerman (Fordham Law School) & Gautham Rao (American University), Emoluments, Zones of Interests, and Political Questions: A Cautionary Tale (Hastings Constitutional Law Quarterly, Vol. 45, No. 4, 2018).  Here is the abstract:

As the Supreme Court addresses partisan gerrymanders in 2018, the “political question” doctrine is facing intense scrutiny. Will the Court tackle the problem or punt once again? It turns out that other high-profile cases in the lower courts offer a perspective on the political question doctrine. The Emoluments cases offer a cautionary tale about the use of the political question doctrine, and how the political question doctrine is too often an unconsciously tempting escape for judges facing challenging legal questions. The dismissal by the Southern District of New York in CREW v. Trump avoided reaching the merits of the emoluments claims by finding that the plaintiffs do not have standing to bring the suit. The decision contains serious errors in its zone of interests analysis and its political question analysis. In this essay, we argue that the plaintiffs are clearly in the zone of interests of the Emoluments clauses and that the political question analysis is out of step with a half dozen justiciable clauses of the Constitution. These errors are a sign of trying too hard to avoid the merits. There are certainly times when it is appropriate for courts to invoke the political question doctrine, but this episode is a reminder for judges to slow down and reflect when it may be an intuitively appealing resolution, but in fact, it is a dodge of a tough constitutional issue.