Wednesday, August 25, 2010

Meier on Causation and Standing

Luke Meier (Baylor Law School) has posted Causation and Standing to SSRN. 

To satisfy the standing requirements deriving from the “case” or “controversy” language of Article III, a plaintiff must show (1) injury in fact which is (2) fairly traceable to the defendant’s misconduct (“causation”) and which can be (3) redressed by a favorable decision of the court. This articulation of the standing requirements deriving from Article III has been recited by the Supreme Court for nearly thirty years, but these requirements can be traced to cases extending back even further. This conceptualization of Article III standing requirements has been the subject of extensive academic criticism, from the moment the current formulation of standing was introduced to the most recent law review volumes. The topic of standing has attracted the attention of some of the nation’s most brilliant legal academics.

For the most part, the ubiquitous academic criticism of standing has focused primarily on the injury prong of the standing analysis. This Article will depart from the thrust of most standing scholarship by focusing on the second element, rather than the first element, of Article III standing. The “fairly traceable” or “causation” requirement of standing has largely been ignored, or treated as a secondary consideration, in modern academic discussions on standing. Partly because of academic disinterest in this topic, uncertainty remains as to the analysis required by the causation prong of standing. A major purpose of this Article is to shed light on this issue.

I hope to accomplish this task by heavily relying upon causation concepts and terminology developed in tort law. In particular, I wish to employ the concepts of “cause in fact” and “proximate cause,” both of which are elements of a standard Negligence clam. Modern tort law recognizes cause in fact and proximate cause as distinct concepts serving separate purposes. This has not always been the case. The “decoupling” of cause in fact and proximate cause is a relatively recent phenomenon, and one that is still ongoing in the most recent Restatement (Third) of Torts.

A similar “decoupling” is needed for causation in the standing context. Distinguishing cause in fact and proximate cause in tort law had facilitated the achievement of increased analytical clarity within tort doctrine. Employing the same decoupling approach to causation within standing can produce the same effect. In fact, it leads to a somewhat startling conclusion: While the terminology often used by the Supreme Court in discussing the causation prong of standing suggests a cause in fact analysis, in most cases it appears that the Court has not engaged in the cause in fact analysis suggested by the language used in the opinions.

This disconnect – between the terminology used by the Court and the analysis actually conducted under the causation prong of standing – is most evident when one considers the purposes or functions generally attributed to standing. Standing is often described as serving a “gatekeeper” function which is to operate at the “threshold” of a federal lawsuit. The nature of the cause in fact inquiry, however, is flatly inconsistent with these functions of standing law. The cause in fact inquiry is fact intensive; it requires the decision-maker to draw inferences from evidence. Having a cause in fact inquiry as part of the threshold standing analysis is akin to forcing a square peg in a round hole; it is a horrible fit. Not surprisingly, then, the Supreme Court has struggled mightily to develop a procedural approach to standing causation which recognizes the gatekeeper function of standing while also incorporating the cause in fact terminology that is found in the Court’s opinions. The failure to develop a cohesive procedure for employing this cause in fact terminology is a symptom of an underlying problem.

These procedural problems disappear, however, if the “fairly traceable” or “causation” prong of standing is interpreted as requiring a proximate cause analysis. Procedurally speaking, a proximate cause interpretation of standing is a great fit with the gatekeeper function attributed to standing law. A proximate cause analysis does not require a federal court to draw inferences from evidence at the outset of litigation; instead, it requires a court to ascertain the purposes behind the law on which the plaintiff relies in bringing her suit. This sort of analysis is deferential to other branches of government and is purely legal, as opposed to factual, in its scope. As such, it is a comfortable task for federal courts to perform and can be easily conducted at the threshold of litigation.

The superior “fit” of proximate cause in standing makes it a better interpretation of the “fairly traceable” prong of standing. A close inspection of the early Supreme Court cases using cause in fact terminology suggests that the Supreme Court most likely intended, originally at least, a proximate cause analysis. Because of the failure to properly “decouple,” however, proximate cause concepts were verbalized using cause in fact language. In subsequent Supreme Court cases the Court has continued to employ cause in fact language but has usually avoided engaging in a full-fledged cause in fact analysis.

As such, the Court should reformulate the causation prong of standing to clarify that it requires a proximate cause, rather than a cause in fact, analysis. This interpretation of the causation prong of standing will solve the procedural problems caused by the current cause in fact language used in the opinions and will be a better tool for implementing the intuitions which originally prompted the Court to develop this branch of standing jurisprudence.


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