Document Type

Working Paper

Publication Date

2-22-2018

SSRN Discipline

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; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

Abstract

This essay is an invited response to Fred Smiths Vanderbilt Law Review article Undemocratic Restraint Smith critiques an important trend in the Supreme Courts decisions on standing the transformation of concepts that had been viewed as judiciallycreated prudential limits on a partys standing to sue into concepts grounded in positive law such as federal statutes or the Constitution This essay uses two Supreme Court decisions which coincidentally came down weeks after Smiths article was published to highlight some questions and concerns regarding two areas of standing doctrine that Smith examines One subject of doctrinal transplantation has been the zone of interests test In its 2013 decision in Lexmark International Inc v Static Control Components Inc the Supreme Court declared that the zoneofinterests inquiry is a feature of statutory interpretation rather than prudential standing In its 2017 decision in Bank of America Corp v Miami the Court revisited the zoneofinterests test By a 53 vote it held that the City of Miami"”which sued Bank of America for Fair Housing Act FHA violations that led to lost tax revenues and additional municipal expenses"”fell within the FHAs zone of interestsA potential future candidate for transplantation is the adverseness requirement Several Justices though never a majority have argued that adverseness is not merely a prudential consideration rather it is constitutionally mandated by Article III In its 2017 decision in Microsoft Corp v Baker the Supreme Court considered whether appellate courts could review a district court's refusal to certify a class action where the lead plaintiffs"”following the denial of class certification"”stipulated to a voluntarily dismissal of their individual claims The majority in Microsoft found a lack of appellate jurisdiction on statutory grounds According to a threeJustice concurrence however there was an appealable final decision for statutory purposes but a lack of adverseness placed the appeal outside the bounds of Article III

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