Clearing brush on standing and merits

While SCOTUS has successfully disentangled jurisdiction and merits over the past several years, it has not done much with standing and its unfortunate conflation with merits. Tuesday's decision in Lexmark int'l v. Static Control Components perhaps marks a first step toward drawing sharper distinctions. The issue in the case was whether Static Control could bring a false advertising claim under the Lanham Act against Lexmark, even though the companies are not competitors.

The parties and the lower courts framed this in terms of the "zone of interests" test for prudential standing. The Court unanimously rejected that framing (as well as the closely related "statutory standing"), saying it has nothing to do with subject matter jurisdiction or standing. Zone of interests goes to whether the plaintiff falls within the class of people whom Congress authorized to sue through the statutory cause of action. This is a pure merits inquiry, akin to whether a plaintiff is an "employee" under Title VII. The focus is on the pleading (citing Iqbal) and whether the plaintiff has sufficiently alleged a claim that falls within the scope of the congressionally created cause of action.

Moreover, in footnote 3, the Court potentially cast doubt on all "prudential standing" as an "inapt" label. Prudential standing has historically consisted of three doctrines: Zone of Interest; No Third-Party Standing; and No Generalized Grievances. This case establishes the first as a merits inqury. In FN 3, the Court said that recent cases have treated the third as a matter of the Article III case-or-controversy requirement rather than as prudential. As for the second, the Court noted that some cases suggesting it is "closely related" to whether the plaintiff has a right of action, although most cases have not framed it that way. It expressly left that question for another day, although the tenor of this opinion and this footnote suggest a reluctance to keep this category alive. In other words, something is either a true Article III inquiry or a merits inquiry, with no fuzzy middle ground.

As an admitted adherent to the William Fletcher "it's all merits improperly constitutionalized" view of standing, this is a move in the right direction.