Emile J. Katz (University of California, Berkeley - School of Law) has posted Due Process & The Standing Doctrine on SSRN. Here is the abstract:
The standing doctrine undergirds every case litigated in federal court yet, despite its ubiquity, the doctrine is difficult to apply, cannot be derived from the plain meaning of Article III of the Constitution, and doesn’t effectively serve the goals the Supreme Court has explained as its raison d'être. Accordingly, the standing doctrine has frequently been criticized as a policy-driven and judicially-invented fabrication. This article posits that, if appropriately understood, the standing doctrine is required by the Constitution’s text—but by the Due Process Clauses of the Fifth and Fourteenth Amendments, not by Article III. The Due Process Clauses prohibit courts from depriving a person of life, liberty, or property without due process of law. As Justice Amy Coney Barrett has explained, stare decisis can often function similarly to preclusion and consequently the application of stare decisis can deprive litigants of their life, liberty, or property rights without due process of law. This article proposes that standing resolves the due process issue identified by Justice Barrett by ensuring that litigants presently before a court are adequately representing potential future litigants and thereby providing those future litigants with due process. In short, the Due Process Clauses require courts to check for standing because otherwise the application of stare decisis—a legal principle tracing back to before the Founding—would deprive future litigants of their rights without due process of law. Viewing standing as a due process requirement both ties the doctrine to the Constitution’s text and helps explain much of the Court’s discussion of the standing doctrine’s purposes. This article additionally discusses the implications which arise from reframing standing as a due process requirement rather than an Article III requirement.
Interesting, sure to be controversial, and highly recommended.
