Protecting our Progeny for Posterity: Article III Standing for Likely Future People

Categorizing is helpful. Being overly rigid is not. In the new year I hope to continue learning about standing doctrine, writing about the law, and expressing myself creatively.

Much of the substantive and architectural inspiration for this paper topic comes from Martin Bunzl, a former professor of mine at Rutgers University, and Jed Shugerman, a current professor of mine. As in all of my intellectual pursuits I owe Peter Klein, a former professor of mine at Rutgers University, credit. This paper has a humble goal - allow current doctrine to illuminate a previously hidden solution. After all, as Professor Klein would say, "That's the whole idea."

Happy New Year --

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TABLE OF CONTENTS

Introduction

The Model

Standing in Detail

Current Standing Doctrine

Lujan Four-Prong Multifactor Test

Current Standing Doctrine Applied to Likely Future People

Posterity

Constitutionally Recognized Likely Future People

Methodology of Bringing the Cause of Action

Parens Patriae

Incompetent

Private Attorney General

Time traveler Private Attorney General

Qualifications

Separation of Powers

Hypothetical Injuries and Hypothetical People

Professional Ethics

Conclusion

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Introduction

The opportunity for judicial remedy is an equalizer.[1] The poorest can sue the richest, the weakest can sue the strongest, and so it goes.[2] In order to bring a cause of action in Federal Court, or satisfy Article III standing doctrine, plaintiffs must satisfy a four-part multifactor test.[3] The plaintiff must show it has suffered an ‘injury in fact’ that is concrete and particularized and actual or imminent, not conjectural or hypothetical; the injury is fairly traceable to the challenged action of the defendant; and it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.[4] In addition to satisfying these elements there must be a plaintiff. Someone must bring the cause of action. These elements are meant to filter out incompatible plaintiff parties. Interestingly, while prima facie plaintiffs need not be physically present, coherent, or competent, standing doctrine has not been interpreted to include future hypothetical people. Future Hypothetical People are our progeny; those the constitution extends in posterity the protection of rights.[5] Environmental activists have noted a dilemma; how could future hypothetical people been bequeathed constitutionally acknowledged rights but not the opportunity for redress? Opening access to the Federal courts to future hypothetical people would solve that problem, but it would also impose additional, previously barred, plaintiffs from bringing actions. This might burden the judicial economy. It’s unclear how much of a burden this interpretation would impose and therefore this consideration will not be addressed. Another consideration that must be addressed is whether this interpretation would compel courts to encroach the legislature’s jurisdiction in violation of Separation of Powers principles. It is the latter concern that has primarily cautioned the court to abstain from providing redress for harms that hypothetical future people are susceptible to suffering. And yet, importantly, the Lujan factors didn’t explicitly bar non-current people. Plaintiffs that satisfy the Lujan factors who are non-current people should have standing to bring a cause of action in federal courts.

By definition, the set of future hypothetical people is infinitely large. Within that set is a discrete set of Likely Future People. How likely, and by what characteristics actually determine likelihood is outside the scope of this paper. There are many ways to narrow and more specifically identify who is a Likely Future Person. To demonstrate the viability of the doctrinal interpretation proposed here, Likely Future People need only be defined as the set of people who are likely enough to almost assuredly become people, but are not yet people.[6] Additionally, Likely Future People are different from the rest of future hypothetical people because, they in particular, can be harmed in a way that qualifies as an “injury in fact.” In this paper I will show how Likely Future People satisfy each element of the Lujan factors. In order to bring a cause of an action merely being within the theoretical eligibility zone is not enough, it must be demonstrable. This paper aims to show that it is possible to demonstrate. This paper is restricted to showing the theoretical viability of Likely Future People demonstrating the Lujan factors. Which current person would bring the action is a question begging to be answered. And so, a theoretical agent will be developed by combining characteristics of currently accepted doctrine. After considering the doctrinal grants of power to potential plaintiffs of parens patriae and guardian ad litem for incompetent plaintiffs, a variation of the current doctrinally accepted Private Attorney General will be postulated. The Time traveling Private Attorney General will be defined and identified as the agent who would bring a cause of action on behalf of Likely Future People. After describing the implementation methodology, I will consider the strongest arguments against the viability of this application of Lujan doctrine. Whether this novel interpretation is viable depends on its implications to Separation of Powers principles. A definitional hurdle must be acknowledged and addressed. Next, I will acknowledge an ethical tradeoff. I will then offer a brief conclusion.

People today plan for their progeny. Wills and trusts protect property for future hypothetical people. The Constitution explicitly extends its rights and protections to future hypothetical people. Yet, to date, the Supreme Court has interpreted the “cases and controversies” clause narrowly.

The Model

Likely Future People are conceptual, they are not yet real people. A model for consideration will help illicit empathy for them. Imagine four people: Partner A, Partner B, The Destroyer, and the Time traveler Private Attorney General. Partner A and Partner B are pregnant together. Their progeny is a Future Likely Person. There is one toy in the world. This toy provides utility for everyone, but a unique version of utility to each person. It’s called Nature. Nature is a sphere. Its structural integrity depends on an intricately laced cord. The Destroyer wants to build its own toy to provide utility for themselves only; call this new toy Coal. To do this, the Destroyer snips at the laces of Nature, one cord by one cord. While this happens, Nature is still usable. Its structural integrity depends on the coherence of the intricately laced cord; but, much cord is redundant.[7] One of Nature’s characteristics is that it can regenerate its laced cord. Unfortunately, the Destroyer is removing cord faster than Nature can regenerate. The Destroyer is dangerously close to snipping the last redundant cord, the next cut will irreversibly destroy Nature. Partners A and B turn to each other with resignation. Unraveling might take some time, but it is irreversible. Partner A and B are sad. They know if the Destroyer is allowed to destroy Nature, Future Likely Person will not be able to experience the unique utility it otherwise would have. The nod to each other knowingly and hire Time traveler Private Attorney General to bring a cause of action against the destroyer today for an injunction on snipping until a sufficient amount of cord has regenerated.

Standing in Detail

Current Standing Doctrine

In life, disputes arise. Some of these disputes are judiciable before the Federal Courts, others aren’t. Article III of the Constitution delineates this boundary. It states:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The province of the courts is to resolve certain disputes between certain parties. Standing doctrine filters out non-justiciable disputes. Restricting who can access the dispute resolution capability of the judiciary entails some sacrifices. Judges are often wise, yet they cannot provide advisory opinions. Judges, if given the opportunity to resolve an unripe dispute, might head off a negative result. Alas, only disputes that have become controversies, and haven’t yet been resolved, can be decided by the courts. Despite these sacrifices this limitation is important. It ensures the integrity of the Separation of Powers principles. Second it triages disputes so only those that are most complimentary to the judicial system’s expertise are addressed. Certain disputes in opinion, morality, and emotion, don’t illicit a dispute in law and fact that require a neutral third party to resolve. Standing bars those disputes but not on account of whether the asserted claim itself is appropriate.[8] It’s an assessment on the appropriateness of the parties. Standing provides society value by ensuring appropriate parties have the opportunity for redress, remedy, and recourse when violations of rights recognized by law occur.

Lujan Four-Prong Multifactor Test

In Lujan v. Defenders of Wildlife, the Supreme Court provided a four-prong multifactor test for plaintiffs in order to satisfy the Cases and Controversies Clause.[9] Prong one and two form an “injury in fact.”[10] To suffer an injury in fact plaintiffs first must demonstrate they have suffered an injury that is “actual or imminent” and not merely “conjectural or hypothetical.”[11] This means there is a “substantial probability” a harm will occur.[12] Determining what probability is substantial is difficult. Next, they must demonstrate that the injury was “concrete and particularized.”[13] This means it’s not a generalized harm.[14] Prong three requires the injury in fact be causally connected to the conduct of the defendant.[15] The final prong requires a favorable judgement being of the type that will redress the harm.[16]

Lujan was a dispute between environmental activities and the Department of the Interior about the interpretation of §7 of the Endangered Species Act of 1973 (ESA).[17] This case pitted current citizens against the government. Standing was based in part on the act’s citizen suit provision.[18] The Plaintiffs, Defenders of Wildlife, sought an affirmation of the original interpretation of the law and an injunction against the funding of hydroelectricity projects.[19] The plaintiffs alleged that “anyone with an interest” in studying the affected ecosystem was harmed by the government’s lack of consultation about the environmental impacts of its activities abroad because there would be a loss of species.[20] The Court found that the plaintiffs did not have the standing necessary to bring suit because no injury had been established.[21] As prong three and four of the standing test are more readily understood it is the court’s interpretation of an injury in fact that provides guidance on its applicability to Likely Future People. The court insisted that plaintiffs show how the action would produce an imminent injury to the plaintiffs.[22] The injury couldn’t be to merely a cognizable interest, but needed to be concrete and particularized.[23] Further, the party seeking review [needed to] be among the injured [in fact]".[24] Meaning, as Justice Scalia wrote, “A plaintiff cannot claim standing in a suit against the government if he has suffered no personal injury other than the harm suffered by all citizens.”[25] That is, an injury to all is not an injury to one. To demonstrate an injury in fact, Justice Kennedy noted that the facts might decouple individual’s injuries from others; for example, “if [the plaintiffs] had purchased plane tickets to one of the affected places, it might have been enough.”[26] Congress could identify a class of person that was harmed in a concrete and particular way and give them citizen suit standing.[27] None of these definitions of injury in fact prima facie exclude Likely Future People; nonetheless, lower courts have generally required non-government plaintiffs to demonstrate that they will likely be injured during their lifetime to have sufficient injury for standing.[28] Likely Future People don’t have a lifetime yet.

Current Standing Doctrine Applied to Likely Future People

Likely Future People aren’t current people. Noncurrent people can’t demonstrate an “actual” injury but they can demonstrate an imminent injury. A concrete injury has specific characteristics rather than generalized badness. Making someone “worse-off” is not a concrete injury. Making someone “worse-off because they have less money” is more concrete. In the model proffered above the Likely Future Person is worse-off because they wouldn’t be able to get the unique version of utility nature would have provided them. Injuring “all workers” is less particularized then injuring “all workers in that mine.” In the model proffered the Likely Future Person is particular from amongst future hypothetical people. A non-conjectural or hypothetical injury is a ripe injury. That is, not a controversy that could occur but rather one that is entailed by an action or inaction.

The most difficult injury-in fact requirement for Likely Future People to satisfy is to demonstrate an injury that is non-conjectural or hypothetical. Any nexus between current people making assessments of injuries of Likely Future People is relatively remote, requires some amount of prediction, and therefore uncertainty. These are characteristics of conjectural, and, well, hypothetical harms. In current standing doctrine, even remote-like harms have standing. The Chilling Effects Doctrine disassociates the effect from the harm when considering where to determine the “injury in fact” is occurring. It either is the negative effect or it is the current harm. The doctrine allows for a justiciable dispute if a plaintiff could demonstrate that a law or practice has the effect of seriously dissuading the exercise of a constitutional right.[29] The injury in fact acknowledged by the doctrine is the thing that’s happening now, that impacts negatively the not yet actualized harm. The injury that occurs isn’t the hypothetical limitation of someone’s free speech in the future, it’s dissuasion of speaking freely now. This useful model of injury types helps identify an important characteristic for injury in fact against Likely Future People. The remote effect, future free speech, must be causally connected to a harm now, the dissuasion itself. Likewise, the remote effect, lacking the unique utility from Nature, is causally connected to the harm now, the catalyzing of the assured and irreversible elimination of Nature.

Posterity

Constitutionally Recognized Likely Future People

The rights that are granted by the Constitution do not expire. They are granted in posterity. By way of first impression the Constitution’s preamble states:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

This short paragraph informs citizens how to interpret the Constitution’s forthcoming Articles. According to the Supreme Court the legal effect of the preamble is to expound on the nature and extent and application of the powers actually conferred by the constitution, not to substantively create them.[30] Therefore, it seems absolutely appropriate to consider how the preamble would help expound the nature and extent and application of the Article III cases and controversies powers conferred by the Constitution. The preamble couldn’t be construed to grant Likely Future People standing in certain circumstances; that is, the existence of the preamble does not entail the viability of the doctrine proposed here. Nor is the doctrine proposed here an enlargement of the powers actually confided to the government. Rather, it’s a calibration of a core power of the courts, in accordance with the guidance of the Preamble to include all appropriate plaintiffs. Certain Likely Future People are not fundamentally different from certain parties who have been recognized as standing-having-plaintiffs. A categorical denial of Hypothetical Future people is inconsistent with the preamble of the constitution. The Lujan court recognized that, by not explicitly barring Likely Future People it postulated that so long as a Likely Future Person satisfies the Lujan test, that party should have standing, whether they are currently alive or not.

Methodology of Bringing the Cause of Action

Bringing a cause of action is an ancient solution to solving disputes. It is a peaceful. And it is generally effective at seeking justice. There are procedural requirements to bring an action in a federal court. The goal of this paper is not to consider every potential hypothetical party structure to determine if a Likely Future Person could be that party, but rather to identify the one that most easily and inarguably should have access by virtue of it meeting the procedural requirements. The model considered here is an individual from among the set of Future Hypothetical People bringing a cause of action against a current private individual or company. The virtue of this circumstance is that it is most insulated from the allegation of separation of powers. Individual’s suing for the violation of an individual right against another private actor don’t implicate the elected branches of the federal government.[31] The harm considered in the model is one addressed by a statute. Therefore, it must by the type of injury that Congress expected might be addressed under that statute.[32] Further, the plaintiff must arguably be within the zone of interest protected by the statute.[33] Since this paper is considering a hypothetical, it will not test the viability with a current statute but rather assume that a Likely Future Person would meet the characteristics of any individual in a statute so long as the statute doesn’t explicitly require the people be current people.

Parens Patriae

States, as sovereigns, have a mandate to protect rights. The doctrine of parens patriae has been used to expand standing to atypical plaintiffs. The doctrine dates back to the 17th century and has historically granted power to the State to intervene against an abusive or negligent parent, legal guardian, or informal caretaker, and to act as the parent of any child or individual who needs protection. In those cases, most jurisdictions interpreted the doctrine to require the intervenor to prioritize the interests of the child. For example, in any proceedings affecting the validity of a marriage, the children will not be parties in their own right, nor will they be parties to any agreement that the spouses may make. In these proceedings, the courts will often be invited to accept and enforce any agreement between a husband and wife regarding parental responsibility for their children. This will usually be done to ensure the agreement is construed towards the best interests of the child. In time the doctrine was expanded.

The doctrine has been expanded to allow states to actualize standing where it otherwise couldn’t. In 1900 in Louisiana v. Texas, the State of Louisiana brought a suit to enjoin officials of the State of Texas from administering the Texas quarantine regulations which would prevent Louisiana merchants from sending goods into Texas.[34] The U.S. Supreme Court recognized that Louisiana was attempting to sue, not because of any particular injury to a particular business of the state, but as parens patriae for all its citizens.[35] Though the Court found that parens patriae was improperly invoked in this case, it was nonetheless acknowledged as a viable party structure and set a precedent for states to model. By 1972 in Hawaii v. Standard Oil Co., the Supreme Court held that Hawaii could sue as parens patriae for injunctive relief as a state but the individual citizens would have to sue for damages. [36] This doctrine was further ratified in Massachusetts v. EPA, when a group of mostly coastal states sought to sue the EPA to require it to regulate greenhouse gas emissions because they were causing global warming and rising sea levels.[37] Since the risk of harm would be reduced to some extent if petitioners received the relief they seek thereby satisfying the standing requirements within a parens patriae context.

Incompetent

The current federal rules of civil procedure (FRCP) accommodate those who are incompetent to participate in litigation. FRCP 17(c) allows infants or incompetent persons to have a representative, such as a general guardian, committee, conservator, or other like fiduciary in order to sue or defend on behalf of the infant or incompetent person.[38] A legally incompetent person cannot testify or stand trial.[39] The criteria for incompetence include various types of disqualifications, inabilities, or causes of unfitness.[40] An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by guardian ad litem.[41] This person serves the infant or incompetent through the trial by acting in accordance with the represented party’s best interest.[42] The court appoints a guardian ad litem for an infant or incompetent person not otherwise represented in an action when it deems proper for the protection of the infant or incompetent person.[43] When holding a hearing to determine an alleged incompetence there is no adversarial architecture because all sides are assumed to want what’s best for the incompetent.[44] Courts can suggest guardian ad litem and review other interested parties’ suggestions. The court is not required to choose anyone’s suggestion.

Private Attorney General

A Private Attorney General brings a suit for which the remedy benefits both the party and the public interest broadly.[45] Private Attorney Generals have been acknowledged as standing-having-plaintiffs at both the state and federal level via statutory and common law. Therefore, generalized grievances are not prima facie bars to standing; rather, they require particularized injury as well. In certain cases, if an attorney brings a case that benefits the public interest on behalf of many citizens the courts have the discretion to mandate that attorney recover attorney’s fees. This rule recognizes the benefit of certain causes of action on behalf of people that don’t bring the action themselves by incentivizing an individual to nominate themselves the Private Attorney General.

Important areas of litigation for society depend on private attorney generals. Many civil rights statutes depend on this mechanism for their enforcement.[46] For example, the Civil Rights Act of 1964 acknowledged that "A public accommodations suit is thus private in form only. When a plaintiff brings an action … he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority."[47] Congress continues to pass laws with ‘private attorney general’ provisions in laws prohibiting certain civil rights violations including employment discrimination, police brutality, and water pollution. The U.S. Congress codified the private attorney general principle into law with the enactment of Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988. The Senate Report on this statute acknowledged the desire of The Senate Committee to impose on the Judiciary to level the playing field so that private citizens, who might have little or no money, could still serve as ‘private attorneys general’ and afford to bring actions to enforce the civil rights laws.[48] The Committee acknowledged that, "if private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court."[49] The Senate reported that it intended fee awards to be "adequate to attract competent counsel" to represent client with civil rights grievances.[50]

Time traveler Private Attorney General

Systemic inadequacies in the American political system leave the interests of future generations vulnerable to current legislators. Because Future Hypothetical People can’t vote in current elections, elected officials are incentivized to prioritize the interests of current voters at the expense of being held accountable once they have left office or died. The Time traveler Private Attorney General acting as parens patriae can sue on behalf of Likely Future People who, similar to current incompetents, can be granted guardian ad litem. Incompetent plaintiffs cannot represent themselves. Nor can they directly express any of their own interests or preferences, including the usual legal mechanisms for protecting their interests like voting.

Qualifications

Separation of Powers

The U.S. constitution mandates three coequal branches of government; the Legislative Branch, the Executive Branch, and the Judicial branch.[51] One core responsibility of the Judicial branch is to determine what the law means when its disputed and apply the law to the facts.[52] The Separation of Powers principle compels the court to construe their adjudicatory power as narrowly as possible. In order to survive scrutiny, any application of the status quo standing doctrine that allows more potential parties to bring a case or controversy must be not inadvertently force the courts to do make law or policy masquerade as an adjudication.

The Separation of Powers doctrine is a principle of architecture of governance that divides the roles of governance to branches that cannot co-opt the roles of other branches. Fully reproducing the Separation of Powers doctrine is outside the scope of this paper. What’s relevant to address here is whether a resolution of a dispute with Likely Future People plaintiffs is constructively legislating or executing the law. To show that it isn’t, actions of the other branches of government will be considered to demonstrate that resolutions of this type do not mirror those characteristics in any way.

Part of the Executive branch’s mandate is to enforce laws.[53] Due to the scarcity of resources, a core function of the executive branch is to prioritize what laws to enforce, and to the extent they are enforced.[54] That judgement is a political decision. Therefore, individual suits seeking to exercise powers of the government is not justiciable. Part of the Legislative branch’s mandate is to create laws that protect rights.[55] That process of creating policy is a manifestation of politics. Therefore, forcing the government to create laws that protect rights is not justiciable. On the other hand, violations of disputes that would otherwise be justiciable between current world actors that satisfy the Lujan factors but is being brought on behalf of Likely Future People should also be justiciable. That dispute resolution doesn’t intercede any other branches jurisdiction. It is a core judicial branch function.

Lujan factors exclude “abstract questions of wide public significance.”[56] Justice Scalia espoused the view that when a majority of people share an injury, that group may resort to the majoritarian political process for relief. [57] Therefore judicial relief is appropriate only to protect individuals who suffer particular injuries of the type that are insolvable by the political process.[58] Not only can Likely Future People not rely on the political process, but, according to the model, Likely Future Person’s harm is unique from all current people and particular from the full set of future hypothetical people. The court has consistently concluded that the number of people harmed has no bearing on standing.[59] In fact, this is partially the basis for class action law suits.[60] To ensure that the Lujan figures are satisfied and there is no risk of the court legislating the harm to Likely Future People must be imminent by action or inaction now and must be particular to the Likely Future plaintiff bringing the action.[61]

Hypothetical Injuries and Hypothetical People

The strongest argument against the viability of this interpretation of standing doctrine is that any injury in fact to a hypothetical person is a hypothetical harm. It’s an appealing argument because of the allusion of a definitional entailment. Harms to hypothetical people seem to be only be able to have hypothetical harms. But the Lujan type injury could be one that is imminent. And non-current people need not be hypothetical. They could be specific, measurable, and identifiable. They could be likely. For Likely Future People the harm would have to be a violation of a statute or right prior to them being born that causes an injury in fact. The injury would have to be the type envisaged by the Chilling Effects Doctrine. Actions that cause harm now that cause injury in fact to Likely Future People, who by definition, will experience the harm later. By removing cord, the Destroyer creates a remote effect of the destruction of Nature, by causing harm now which is initiating the assured unraveling of Nature.

Professional Ethics

It would be difficult for the Time traveler Private Attorney General to be sure that bringing an action on behalf of the Likely Future Person serves their interests during litigation.[62] Just as Likely Future People have no ability to participate in the political process they don’t have the ability to participate in the judicial process (other than to benefit from a favorable decision). This is concerning. It is even more concerning that Likely Future People might not want to be represented. It is not unimaginable that the Future Likely Person in the Model becomes partial to the Destroyer with Destroyer-like interests and have wished that instead of taking on the case the Partners obliged the Destroyer. This is admittedly a sacrifice that the doctrine must accept. But it is not unique to cases involving a Likely Future Person plaintiff. In both the role of a lawyer serving an incompetent client and in the model of the parens patriae the lawyer would have limited access to their client’s interests. For a state to sue on behalf of its citizens assumes all of the citizens want the same thing. That seems unlikely. And in the case of incompetent, the individual might not be capable of effectively communicating their interests. But in both cases the doctrines allow those cases to continue with the assumption that so long as the lawyer prioritizes what the court believes to be the clients best interests the application of the doctrine is acceptable.

Conclusion

Likely Future People’s rights aren’t less worthy of protection via judicial review. The negative inference, that they are not categorically barred, from Lujan supports that proposition. Standing rules need not be categorically applied and different for current people and non-current people. The Lujan courts multifactor test supports that proposition. People today plan for their progeny. The courts have a role to play; they should protect our progeny in posterity.

[1] Torts, Professor Jed Handelsman Shugerman, Fordham University Law School (2019)

[2] Id

[3] The Lujan factors are generally referred to as three pronged, but the first prong has two components

[4] Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-181 (2000) reinforcing the Lujan factors

[5] U.S. Const. Preamble

[6] Note that the complicated questions of when “life” begins is also outside the scope of this paper

[7] That is, the structural integrity depends on the coherence of cords numbered 1-10 but cords 11-100 are redundant

[8] Jeremy Gaston, Note, Standing on Its Head: The problem of Future Claimants in Mass Tort Class Actions, 77 Tex. L. Rev. 215, 219 (1998)

[9] Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

[10] Id

[11] Id

[12] Cornell Law School, Constitutional Standards: Injury in Fact, Causation, and redressability., Legal Information Institute (last accessed 12/30/2019), https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/constitutional-standards-injury-in-fact-causation-and-redressability.

[13] Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

[14] Cornell Law School, supra note 12

[15] Id

[16] Id

[17] Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

[18] Id

[19] Id

[20] Id

[21] Id

[22] Id at 564

[23] Id

[24] Id at 563

[25] Id

[26] Id

[27] Id

[28] Supra note 8, and note that the Lujan test applies whether or not the Government is a party

[29] Cornell Law School, Judicial Power and Jurisdiction-Cases and Controversies., Legal Information Institute (last accessed 12/30/2019), https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1.

[30] United States v. Boyer, 85 F. 425, 430–31 (W.D. Mo. 1898) + Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905)

[31] F. Andrew Hessick, The Separation-of-Powers Theory of Standing, 95 N. Car. Law Rev. 95, 3 (March, 1, 2017), and Silha v. ACT, Inc 807 F.3d 169 (7th Cir. 2015)

[32] Id and Federal Election Commission v. Akins, 524 U.S. 11 (1998).

[33] Id and Allen v. Wright, 468 U.S. 737 (1984).

[34] Louisiana v. Texas., 176 U.S. 1 (1900)

[35] Id at 19

[36] Hawaii v. Standard Oil Co., 405 U.S. 251 (1972

[37] Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007)

[38] Federal Rules of Civil Procedure, Rule 17. Plaintiff and Defendant; Capacity; Public Officers

[39] Cornell Law School, Incompetence., Legal Information Institute (last accessed 12/30/2019), https://www.law.cornell.edu/wex/incompetence.

[40] id

[41] Smith v. Langford, 255 So. 2d 294

[42] Federal Rules of Civil Procedure, Supra note 38

[43] Doe v. Shalala, 862 F.Supp. 1421, 1426 (D. Md. 1994)

[44] Joan L. O’Sullivan, Role of the Attorney for the Alleged Incapacitated Person, Stetson Law Rev., 31, http://www.supporteddecisionmaking.org/sites/default/files/role_of_the_attorney.pdf

[45] Trevor W. Morrison, Private Attorneys General and the First Amendment, 103 Mich. Law Rev., 4 (2005).

[46] Carl Cheng, Important Rights and the Private Attorney General Doctrine, 73 Cal Law Rev., 1929 (1985)

[47] Newman v. Piggie Park Enterprises., 390 U.S. 400 (1968)

[48] S. Rep. No. 94-1011, p. 6 (1976)

[49] id

[50] id

[51] Branches of the U.S. Government, USA Government, https://www.usa.gov/branches-of-government

[52] Richard Posner, Antonin Scalia’s Legal Logic is Lousier Than His ‘New York’ Interview, The New Republic, (2013), https://newrepublic.com/article/115047/scalias-legal-reasoning-incoherent.

[53] U.S. Const. art. 1, § 3, cl. 24

[54] Daniel Costa, What You Need to Know about the President’s Legal Authority to Expand Deferred Action for Unauthorized Immigrants, Economic Policy Institute: Working Economics Blog, (2014), https://www.epi.org/blog/presidents-legal-authority-expand-deferred/.

[55] U.S. Const. art. 1, § 8

[56] Guidelines on Constitutional Litigation, United State Department of Justice, Office of Legal Policy, February 19, 1988

[57] Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 893, 896–97 (1983).

[58] F. Andrew Hessick, The Separation-of-Powers Theory of Standing, 95 N. Car. Law Rev. 95, 3 (March, 1, 2017).

[59] Id

[60] Id

[61]Id and See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 575–76 (1992). 41. E.g., id. at 575–76 (quoting United States v. Richardson, 418 U.S. 166, 176–77 (1974)); Valley Forge, 454 U.S. at 475 (stating that “generalized grievances” are “most appropriately addressed in the representative branches” (citing Warth v. Seldin, 422 U.S. 490, 499–500 (1975))); see also Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 n.3 (2014) (confirming that restriction on generalized grievances is constitutional, not prudential). 42. Lujan, 504 U.S. at 576. 43. Id. at 575–76.

[62] ABA Rules of Professional Ethics Rule 1.2 Scope of Representation & Allocation of Authority Between Client & Lawyer