| Description |
This article is divided into three Parts. Part I briefly sets out the history of the law of standing. Here I discuss the clear acceptance of stranger or citizen suits at the founding period in both England and early America. The Lujan Court should not have taken the extraordinary step of invalidating a congressional grant of standing without investigating the relevant history.
I also describe the very recent creation of the injury-in-fact test. I will show that, in an exceedingly short period, a revisionist view of Article III, with no textual or historical support, has established injury in fact as a constitutional prerequisite. I also argue that, despite its apparent simplicity, the notion of injury in fact is heavily dependent on an assessment of law and is far from a law-free inquiry into facts. Part II describes and evaluates the various holdings in the Lujan case. I end the Part with two brief detours: a discussion of the role of the citizen suit in regulatory law and a general assessment of Justice Scalia's conception of Article III, as set out in his 1983 Suffolk Law Review article. The overlap between the 1992 Lujan opinion and the 1983 article is sharp and clear. The overlap makes the article a matter of considerable current interest.
Part III discusses the future of the law of standing in the wake of Lujan. Here I try to show exactly which issues are open and which closed. One of my major purposes is to explore the effect of Lujan on current regulatory cases brought by beneficiaries. of regulatory statutes. I argue that in many such cases standing remains available, but that some cases brought by consumers and others are now drawn into sharp question.
In order to overcome some of the uncertainties now facing citizen suits, I recommend that Congress create a system of bounties for citizens in cases involving both private defendants and the executive branch. Even after Lujan, such a system should raise no constitutional question. Congress may also have the power both to create property rights in the benefits provided by regulatory statutes and to establish standing to vindicate those property rights. I conclude with a discussion of this intriguing possibility. (Description from Source) |