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Publication Date

2010

Abstract

According to the Supreme Court, Article III's extension
of "judicialPower" to "Cases" and "Controversies"limits
standing to plaintiffs who can demonstrate an
individualized "injury in fact" that was caused by the
defendant and that is judicially redressable. Article III's
text and history, however, do not mention "injury,"
"causation,"or "redressability."
Furthermore, these standards are malleable and have
been applied to achieve ideological goals, especially in
cases involving environmental and animal-welfare laws.
Most notably, the Court has recognized an "injury in fact"
to one's aesthetic enjoyment of nature, but determining
such an injury is arbitrarybecause "aesthetics"is a matter
of personal taste. Judges have exercised similar unbridled
discretion in ascertaining causation and redressability.
The result has often been a judicial takeover of important
policy issues.
Standing decisions are so inconsistent and politicized
that most scholars have recommended abandoning the
doctrine. However, stare decisis will prevent such a
radical change. Therefore, I offer a more realistic
approach that retains the existing standingframework but
modifies its elements. My touchstone is the historical
meaning of an Article III "case," which restricts court
access to plaintiffs whose legal rights have been invaded
fortuitously because of a chance event beyond their control.
Applying this test, courts would find an "injury in fact"
only when it befell a plaintiff by accident, not when
someone manufactured a lawsuit by claiming "aesthetic"
harm. Insisting on a fortuitous injury would also make it

far easier to determine who caused it and whether the
remedy requested would redress it.

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