Document Type

Working Paper

Publication Date

1-23-2018

SSRN Discipline

Legal Scholarship Network; Litigation, Procedure & Dispute Resolution eJournals; Corporate Governance Network; Law & Society eJournals; Law & Society: Public Law eJournals; Administrative Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Management Research Network

Abstract

Scholars have written volumes about Justice Scalia's decision in Lujan v Defenders of Wildlife and other privateparty standing cases But another line of opinions may prove in the long run to be equally significant Justice Scalia was also indeed perhaps more skeptical about a different type of litigant government institutions Today that skepticism has a great deal to teach us because intergovernmental litigation is on the rise States have sued the federal government over environmental and immigration policy the House of Representatives has taken on the federal executive over health care and samesex marriage and a state legislature sued another state institution over control of electoral districts This Essay argues that Justice Scalia was right to be concerned about such intergovernmental litigation albeit for somewhat different reasons than the Justice articulated The rise of "government v government" lawsuits reflects two related and troubling developments in our constitutional scheme of separated powers a decline in faith in the political process and a corresponding increase in reliance on the federal judiciary to resolve controversial issues The Essay further suggests that to the extent these trends continue there may be troubling longterm implications for the federal courts

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