See full call for papers at the Pacific Legal Foundation's website.
Standing and other justiciability doctrines, such as the political questions doctrine, can be major obstacles to public interest litigation and the vindication of constitutional liberties. Are these doctrines less about 1789 or 1868 and more about 20th-century policies of judicial restraint? What does originalism have to teach us about how these doctrines have developed, and how they might be reformed?
The Supreme Court has held that the judicial power is limited to “cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 774 (2000) (quotation omitted). Article III’s jurisdictional limits are designed, according to the Court, “to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013).
But scholars and jurists have debated whether the current state of standing doctrine—which requires a personalized concrete injury that is traceable to the defendant’s challenged actions and redressable by courts—has any footing in the original understanding of Article III. Some scholars, like Professor Cass Sunstein, have argued that this doctrine “has no support in the text or history of Article III” and “should not be accepted by any judges who are sincerely committed to the original understanding of the Constitution and judicial restraint.” Cass R. Sunstein, What’s Standing after Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163 (1992).
Others have argued that there is a consistent history going back to the founding and to English common-law courts that support personal injury as a common pre-condition to suit. See, e.g., Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689 (2004). Justice Clarence Thomas, for instance, takes the view that “[c]ommon-law courts more readily entertained suits from private plaintiffs who alleged a violation of their own rights, in contrast to private plaintiffs who asserted claims vindicating public rights.” Spokeo v. Robins, 576 U.S. 330, 343 (2016) (Thomas, J., concurring).
Pacific Legal Foundation and the New York University Journal of Law & Liberty seek papers expanding on this debate. The symposium aims to consider standing’s basis in original understanding and to extend the conversation to include other justiciability doctrines such as ripeness, political questions, immunity, and abstention. We also hope to explore whether the Second Founding might inform our understanding of justiciability doctrines.