Standing for nothing: The paradox of demanding concrete context for formalist adjudication

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Abstract

This Article examines a paradox found in public law cases. While justiciability doctrines aim to provide concrete context for adjudication of public law questions by insisting upon individual injury, the Supreme Court often ignores the litigants' injuries when it turns to the merits of cases. Examination of this paradox leads to a fuller appreciation of the structure and nature of public law. In particular, it sheds light on a recent debate about whether constitutional litigation should be seen as concerning individual rights or the validity of legal rules. It also raises serious questions about the modern doctrine of standing. Alexander Bickel, in his influential writing on the "passive virtues, " viewed justiciability doctrines as an aid to wise decision-making. Bickel emphasized that the law of standing would provide concrete information about the consequences of laws undergoing judicial review that would contribute to sounder, more enduring judgments regarding constitutionality. But information about injury often has no influence upon the merits of public law cases, and an analysis of the reasons for this lack of influence casts doubt on justiciability doctrines' capacity to aid wise decision-making. Courts should adopt a new set of "active virtues" - a set of practices governing the framing, consideration, and resolution of the merits of public law cases.

Original languageEnglish (US)
Pages (from-to)808-891
Number of pages84
JournalCornell Law Review
Volume89
Issue number4
StatePublished - May 2004

ASJC Scopus subject areas

  • Law

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