Academic journal article The Review of Litigation

Why Crocodiles, Elephants, and American Citizens Whould Prefer Foreign Courts: A Comparitive Analysis of Standing to Sue

Academic journal article The Review of Litigation

Why Crocodiles, Elephants, and American Citizens Whould Prefer Foreign Courts: A Comparitive Analysis of Standing to Sue

Article excerpt

I. Introduction

The Nile crocodile and Asian elephant had little to cheer about in 1992. That year the U.S. Supreme Court's decision in Lujan v. Defenders of Wildlife1 dealt a crushing blow to the citizen suit enforcement provisions of the Endangered Species Act (ESA).2 Seeking a court order compelling the Secretary of the Interior to enforce the ESA abroad, plaintiffs contended that it was unlawful under the Act for the United States to finance foreign construction projects with the potential to jeopardize animals on the ESA.2 IMAGE FORMULA6

endangered species list.3 Particularly, they opposed U.S. funding of the rehabilitation of the High Aswan Dam in Egypt and the Mahaweli water project in Sri Lanka, which threatened destruction of the habitats of crocodiles and elephants, respectively.4 The Secretary of the Interior, while claiming that the ESA applied only to domestic construction projects, more importantly argued that the plaintiffs did not have standing to bring their lawsuit because they lacked constitutional prerequisites for access to the U.S. federal court system.5 On the basis of this second argument, the Supreme Court rendered a decision in favor of the defendants without examining the merits of the plaintiffs' case.6 While the Court's decision may have seemed to have only an immediate impact on the Defenders of Wildlife and the crocodiles they sought to protect, this holding and others like it made 1992 a bad year for citizen suits generally and, perhaps most importantly, the rule of law. On its face, the ex ante effect of Lujan appeared limited in scope-the ESA could not be enforced abroad.7 However, the subtler, yet farther reaching effect of Lujan is that it has been a virtual death knell for citizen suits in U.S. federal courts. Specifically, the Court's interpretation of the standing doctrine stymies the ability of citizens to act as private attorneys general and enforce the government's laws.8 Of particular consternation to the plaintiffs in Lujan was the Court's reliance on the standing doctrine to effectively avoid overtly addressing the merits of the claim.9 This denial of access to justice under the IMAGE FORMULA8

auspices of the standing doctrine has become an increasingly used weapon in the U.S. federal courts in recent years.10 This century has seen interpretations of the standing doctrine both contract and expand, shifting in accordance with the political ideology of the existing members of the Supreme Court.11

Under its current permutation, a plaintiff is said to have standing to sue if the defendant caused the plaintiff to suffer a legally cognizable injury that is both judicially redressable and within the zone of interests protected by the statute providing the basis for the lawsuit.12 Absent these requirements, a federal court has no power to hear the case.13 This somewhat simplistic definition only begins to describe the nuances that have developed in the application of the standing doctrine, particularly during the latter half of the twentieth century and perhaps most dramatically in the aftermath of the 1992 Lujan case.14 IMAGE FORMULA10

The standing doctrine has come to have many components, both constitutional and prudential, the difference between the two often being unclear.15 Neither the derivation nor the application of these constitutional and prudential requirements is based on natural law principles of right and wrong but instead on controversial public policies, erroneous historical assumptions, and general animosity towards particular groups of plaintiffs.16 It has resulted in a breakdown of the rule of law and instead imposed the rule of politics upon U.S. courts. 17 This is not to say that the doctrine does not have valid policies underlying its application. Nevertheless, standing has traveled far from its original doctrinal underpinnings and lacks a coherent and uniform application, now placing it in a position to do more harm than good. …

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