Uncontested Adjudication and Standing to Sue

Abstract

This chapter shows that modern standing doctrine cannot be defended by reference to the history and meaning of the text of Article III. Cases, as understood in antebellum America, did not require the plaintiff to seek redress for an injury in fact inflicted by an adverse party. Instead, the term was broad enough to encompass uncontested adjudication by those asserting a claim of right in an ex parte application. The chapter invites the U.S. Supreme Court to reformulate its rule to require only a “litigable interest,” a claim of right in the form prescribed by law. Such a formulation can accommodate some aspects of the Court’s modern doctrine and the tradition of uncontested adjudication.