New judicial federalism urges states to extend their constitutional protections beyond the federal Constitution’s. Yet the scholarship has largely ignored justiciability doctrines—including standing—that dictate the requirements for suing in court. Meanwhile, the federal injury in fact requirement has been debated for years, with critics claiming it is ahistorical and overly restrictive. States, though, are not bound by Article III and can reject the federal standing doctrine. Some states have. In fact, the same year the Supreme Court doubled down on injury in fact by stating “no concrete harm, no standing,” the North Carolina Supreme Court rejected injury in fact and adopted a more permissive legal injury requirement. But the North Carolina Supreme Court’s main rationale was that the federal doctrine is wrong itself. This rests on the mistaken assumption that state and federal courts should have the same standing doctrines. On the contrary, states are not tied to the federal doctrine in any way. This Note explains why states should reject the federal doctrine regardless of whether it is right for federal courts: injury in fact addresses uniquely federal concerns. Federal power grew in response to federal crises and political realities, and, in reaction, the Court used injury in fact to pull the federal judiciary back within its intended limits. Thus, the concerns and values underlying injury in fact are inapplicable to states. Instead of adopting injury in fact, states should adopt more permissive standing doctrines. Such doctrines would be consistent with states’ broader judicial power and would effectuate the goals of the new judicial federalism.
Rebekah G. Strotman,
No Harm, No Problem (In State Court): Why States Should Reject Injury in Fact,
72 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol72/iss7/4