Document Type

Working Paper

Publication Date

3-21-2008

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Law School Research Papers - Legal Studies; Litigation, Procedure & Dispute Resolution eJournals; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

Abstract

The doctrine of standing is said to be key to vindicating the separation of powers guaranteed by the structure of the Constitution But separation of powers is not monolithic and the Supreme Court has used standing doctrine to promote at least three separationofpowers functions for the courts 1 hearing only cases possessing sufficient concrete adversity to make them susceptible of judicial resolution 2 avoiding questions better answered by the political branches and 3 resisting Congresss use of citizen suits and therefore Congresss conscription of the courts to monitor the compliance of the executive branch with the lawWhatever the value of those goals standing doctrine does not effectively serve them Moreover standing doctrine because it is not an effective vehicle for vindicating or even discussing separationofpowers goals has helped paper over profound disagreements within the Court over the meaning of each of these separationofpowers functions disagreements that have persisted since the doctrine began to flourish in the 1960s In this Article I outline the three functions of standing the debates over the meaning of each function and the failings of the doctrine in each I explain the problems caused by the doctrines failure positing that criticisms of the doctrine emerge in part from its use for goals it cannot satisfy I then suggest that these functions deserve more analysis than they receive in the impoverished context of standing analysis recommend a dramatic scaling back of standing as a tool for separationofpowers functions and put forward as an alternative a vibrant abstention doctrine that would place separationofpowers issues in the foreground By adopting these recommendations the Court can stem accusations that it uses standing doctrine for disingenuous purposes provide clearer guidance for the lower courts and more transparently realize the separationofpowers functions it seeks to promote

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