Injury-in-Fact Test

William Fletcher's The Structure of Standing criticized current law for purporting to make a plaintiff's standing to sue turn on a universal, non-normative, “factual” inquiry. However, at least one prominent proponent of standing doctrine, Justice Scalia, asserts a normative theory that claims to account for the universal “injury-in-fact” component of standing, and particularly for its requirement that the plaintiff be differentiated from the public at large. Scalia asserts that courts should redress only injuries that fall differentially on particular plaintiffs because the political process will adequately redress widespread injuries. In order to complete Fletcher's theory, it is necessary to refute Scalia's argument. The refutation is that Scalia overlooks the collective action problems that may make majoritarian remedies impossible if a violation of law works a small injury to the populace at large while benefitting a concentrated group. Justice Scalia's asserted normative reasons for standing doctrine's universal requirement of differentiation therefore fail, and Fletcher's call for a normative, claim-by-claim approach to standing doctrine is therefore strengthened.


What If the Universal Injury-in-fact Test Already Is Normative?
65 Ala. L. Rev. 403 (2013) (symposium)

Abstract
	William Fletcher's The Structure of Standing criticized current law for purporting to make a plaintiff's standing to sue turn on a universal, non-normative, “factual” inquiry. However, at least one prominent proponent of standing doctrine, Justice Scalia, asserts a normative theory that claims to account for the universal “injury-in-fact” component of standing, and particularly for its requirement that the plaintiff be differentiated from the public at large. Scalia asserts that courts should redress only injuries that fall differentially on particular plaintiffs because the political process will adequately redress widespread injuries. In order to complete Fletcher's theory, it is necessary to refute Scalia's argument. The refutation is that Scalia overlooks the collective action problems that may make majoritarian remedies impossible if a violation of law works a small injury to the populace at large while benefitting a concentrated group. Justice Scalia's asserted normative reasons for standing doctrine's universal requirement of differentiation therefore fail, and Fletcher's call for a normative, claim-by-claim approach to standing doctrine is therefore strengthened.