March 2010 Vol. 108 No. 5 THE REVIEW

Zoya's Standing Problem, or, When Should the Constitution Follow the Flag?

Jeffrey Kahn

Some federal 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 legitimate grounds, the complaint is dismissed because the plaintiff lacks a "prior substantial connection" to 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 recently advanced in Boumediene v. Bush, the U.S. Supreme Court's landmark habeas corpus decision. Second, it advances none of the policy interests that 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.

The 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.

 

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