Standing in the Wake of Statutes

In Lujan v. Defenders of Wildlife, the Supreme Court held that when Congress creates a legal interest to see that the law is followed, the deprivation of that interest, without more, is insufficient to allow a plaintiff to meet Article III’s standing requirements. Lujan created significant uncertainty about Congress’s ability to influence judicial standing inquiries by creating statutory rights, especially in light of Justice Kennedy’s concurrence and the majority’s footnote seven. This Article argues that Kennedy’s concurrence and footnote seven are best explained by recognizing that Congress is institutionally superior to courts in evaluating the gravity of likely harms and the causal chains between statutory violations and those harms—evaluations that may bear on whether a plaintiff has met the injury in fact and traceability elements of Article III standing. The Article takes this explanation further, contending that the structure of statutory provisions that do not create causes of action nonetheless reveal legislators’ likely understanding of the significance of certain harms, and the causal connections between those harms and statutory violations. Thus, legislators’ understandings should influence judges’ standing inquiries. Finally, the Article suggests that courts should rely on the purpose of statutory provisions to determine legislators’ understanding, which could guide a judge in evaluating injury in fact and traceability, given that the alternative is the subjective evaluation of the judge without meaningful constraint by relevant legal standards.