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Perspective on cases

t Deep problem with standing doctrine is the difficulty of discerning what constitutes injury. As Easterbrooknoted on 105, “bystanders” may have vital interests in whether the police are doing their jobs or not. Because we all have real interests in living in a certain kind of world, the standing question tends to get tied up with the underlying question of the merits of P’s claim.

t Example: I am outraged because I know that, in a house down the street, A is showing a pornographic movie to B, which B is watching with avid interest. Do I have a right to complain, or am I a mere meddlesome busybody? It depends.

n If B is my seven year old daughter, then my interest seems more cognizable than if

n B is an adult married to A.

t Criticism of standing doctrine:

n Critics argue that the doctrine’s application is wholly dependent on how the court chooses to characterize P’s injury, and there is no principled constraint on court’s choice. [Circularity: to evaluate whether jurisdiction exists, court must examine merits of actual claim.]

n Second, related criticism is that there is no principle that can determine what is a sufficient likelihood of solution to justify standing. Nor, even if the court knew how much likelihood was enough, would it have any basis for determining likelihood (other than guessing), since courts must make these decisions on the pleadings, before the trial, and therefore they have no evidence on which to base their determinations.

n Standard C/A:

i. Standing is an Article III requirement, and courts just need to do the best they can.

ii. AK: is that a necessary reading of Article III? Cases here seem to impose standard that is more strict than requirements from plain language of Article 3. This is because of SC’s conception of judiciary’s role: courts must address constitutional issues and violations of law only where specific people are injured.


Date: 2015-01-02; view: 822


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