The prevalent scholarly view—often associated with Professor Cass Sunstein-—is that a legal right to sue rather than a factual injury suffices for standing under Article III. In a prior work, the current author together with Professor Caleb Nelson provided a more favorable view of requiring common-law type factual injuries for standing. We argued that standing doctrines traditionally kept private parties from bringing claims that more properly belonged to the public or to other individuals. Professor Andrew Hessick subsequently articulated what might be called a “mixed” view. He agreed with the position that the requirement of a factual injury in public rights cases helped to assure that individuals were not litigating rights that more properly belonged to the public. But he also argued that there should be no requirement of factual injury when a plaintiff pursued private rights. In support, he cited certain actions that individuals could bring without having to show apparent tangible injury. Hessick’s mixed view has since acquired a following among some prominent jurists and scholars.
This article argues that the Court’s standing-related concerns that an injured party bring suit arose not only when a private party attempted to litigate the rights of the public, but also when a private party attempted to litigate with respect to injuries of other private parties. In addition, cases that mixed view proponents cite as showing the absence of a factual injury requirement typically involved right-to-exclude property or analogous entitlements. In such cases, invasion of the exclusion right necessarily implied a litigable injury. What is more, the injury requirement has normative attractions that manifest themselves as constitutional concerns. These concerns are present even if the claim is one for an individualized violation of a purely legal right.
Citation
Ann Woolhandler, Private Injuries and Standing, 78 Florida Law Review, 51 (2026).