Cornell Law Review Volume 93 Issue 2

Standing, Injury in Fact, and Private Rights

Under current law, a plaintiff has standing to bring suit only upon alleging an injury in fact. The Supreme Court has noted that this factual injury requirement is necessary to preserve the separation of powers by limiting courts to their historical function of resolving only the rights of individuals. But, despite this stated purpose, the Court has required a showing of injury in fact in actions where a plaintiff alleges the violation of a private right, that is, a right conferred by law on private individuals. This Article argues that the injury-in-fact requirement is superfluous in such actions. Yet the Court has not distinguished such cases and has denied standing in cases alleging the violation of private rights. As this Article shows, requiring a showing of factual injury in private rights cases is ahistorical and actually undermines the separation of powers by preventing the courts from guarding rights and by limiting Congress’s power to create rights.

 

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