Wednesday, November 11, 2009
My friend and former student, Stephen Wallace, has posted on SSRN his paper, "Why Third Party Standing in Abortion Cases Deserves a Closer Look." Here is the abstract:
Third-party standing, the out of the ordinary ability for a litigant to bring not only his own claims to court but those of an absent party as well, is a powerful legal device that demands close attention by judges applying difficult, fact-based tests. Too often since the split decision in Singleton v. Wulff (1976), federal courts have not engaged in a thorough analysis when abortion providers have sought third-party status to present the interests of current or prospective clients. In those cases, the third-party claims were often decisive to the final outcome, making the initial third-party standing determination one of great importance.
This Note argues that the United States Supreme Court decision in Kowalski v. Tesmer in 2004 is not only the new governing law on this question, but is also better in tune with the purposes of standing law than the Singleton plurality opinion. It further argues that most abortion providers’ third-party standing claims will not pass the much more rigorous Kowalski test, and includes some practical suggestions for litigants on using the new standard.
All you Article III jocks out there . . . dig in!