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January 25, 2006


Sam Bagenstos


Wouldn't FEC v. Akins also be helpful:

Often the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found “injury in fact.” See Public Citizen, 491 U.S., at 449-450, 109 S.Ct., at 2564-2565 (“The fact that other citizens or groups of citizens might make the same complaint after unsuccessfully demanding disclosure ··· does not lessen [their] asserted injury”). Thus the fact that a political forum may be more readily available where an injury is widely shared (while counseling against, say, interpreting a statute as conferring standing) does not, by itself, automatically disqualify an interest for Article III purposes. Such an interest, where sufficiently concrete, may count as an “injury in fact.” This conclusion seems particularly obvious where (to use a hypothetical example) large numbers of individuals suffer the same common-law injury (say, a widespread mass tort), or where large numbers of voters suffer interference with voting rights conferred by law. Cf. Lujan, supra, at 572, 112 S.Ct., at 2142-2143; Shaw v. Hunt, 517 U.S. 899, 905, 116 S.Ct. 1894, 1900-1901, 135 L.Ed.2d 207 (1996). We conclude that, similarly, the informational injury at issue here, directly*25 related to voting, the most basic of political rights, is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts.


I think Sam is exactly right. Justice Breyer's opinion in Akins shows how a statute can easily satisfy the standard that Justice Kennedy set out in his concurring opinion in Lujan. Moreover, Breyer's approach severely limits the reach of Scalia's Lujan plurality opinion. Indeed, Breyer undoes each and every premise of Scalia's opinion: that standing rests in significant part on Article II's Take Care Clause, that widely-shared grievences are not actionable and, most importantly, that standing determinations are to be based solely on the injury that the plaintiff suffered, without any reference to the reelvant statutory or constitutional provision in question. Read for all it is worth, Akins represents a wholly new direction in standing law, giving Congress freedom to create standing, essentially, whenever it wants. Akins was 7-2.

The risk is that Akins -- which involved a suit over the FEC's refusal to disclose information about PAC and campaign donations -- has been read by some lower courts exceedingly narrowly, as about "informational standing" only. David's statutory amendment goes further than that. But I think if you count the votes, David's proposal would pass muster. Breyer, Stevens, Ginsburg, Souter, and Kennedy would buy it; Scalia, Thomas, Roberts, and Alito would reject it and try to reinstate the plurality opinion in Lujan.

Not convinced at all

A reasonable fear would be established by evidence that the plaintiff either has regular wire communications from the U.S. to Afghanistan, Iraq or Pakistan, in the course of paid employment involving research pertaining to terrorism or terrorist groups, or commercial transactions with a bank or financial institution in those countries.

So if I send Western Union to my grandmother regularly in Afghanistan, I have standing? Where is the injury, exactly? This reminds me of Justice Douglas' contention that public interest groups can sue on behalf of trees seeking to preserve their aesthetic self-worth.

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