Nelson on Article III Standing and "Victimless" Crimes

Ryan H. Nelson (South Texas College of Law Houston) has posted Article III Standing in Federal Prosecutions of "Victimless Crimes" (92 Fordham L. Rev. Online ___ (forthcoming 2024)) on SSRN. Here is the abstract:

 

Plaintiffs in federal court bear the burden of proving their standing since Article III permits inferior federal courts to exercise jurisdiction over "Cases" and "Controversies" alone. From these constitutional terms of art--"Cases" and "Controversies"--we derive the familiar case-or-controversy requirements of standing, including injury. Yet, these terms of art authorize inferior federal courts' jurisdiction over civil and criminal actions alike, but federal prosecutors have never been similarly burdened with proving the standing of the United States, including that the United States has suffered injury. This article examines that lapse and contends that Article III compels federal prosecutors to shoulder the burden of proving that the United States has been injured-a burden easily carried in all but federal prosecutions of so-called "victimless crimes" where the United States has not been, and never will be, harmed.