Academic

Kahn on Standing for Foreign Plaintiffs

By Lawrence Solum

Jeffrey Kahn (Southern Methodist University Dedman School of Law) has posted Zoya's Standing Problem, or, When Should the Constitution Follow the Flag? (Michigan Law Review, Vol. 108) on SSRN. Here is the abstract:

Some courts have devised a new test of prudential standing that they use to dismiss suits filed by foreign plaintiffs alleging unlawful conduct by American officials abroad, even when these cases involve matters that may have nothing to do with foreign affairs, national security, or terrorism. Rather than decide the case on its merits or dismiss it on any number of statutory or doctrinal grounds (e.g. the political question doctrine or the state secrets privilege), the complaint is dismissed on the jurisdictional ground that the plaintiff lacks a ?prior substantial connection? with the United States.

I identify and critique this strange but proliferating test of standing. First, it is inconsistent with any theoretical view of the Constitution?s extraterritorial application, including the functional one advanced in Boumediene v. Bush, the Supreme Court?s landmark decision last term. Second, it advances none of the policy interests that the doctrine of prudential standing was created to promote. The test has been wrenched from its origins as an approach to decide the merits of a constitutional question; it is now used to decide jurisdiction. This impedes the development of an important area of case law while abdicating the judicial role in defining the limits of state power.

My Article begins with an in-depth case study (based on interviews and primary sources) of a takings claim that would have been unexceptional but for its foreign location and rather shocking allegations against the United States. I repeatedly reference this case while examining the theoretical and practical inconsistencies of dismissing ?Zoya?s case? not because the courts found fault with her claim, but because she lacked a prior substantial connection to the United States.

Sounds right to me!

Full post as published by Legal Theory Blog on April 22, 2009 (boomark / email).