Washington Law Review


Federal courts are courts of limited jurisdiction. Their jurisdiction is limited by subject-matter jurisdiction, personal jurisdiction, and, to an uncertain extent, standing. While it is well established that Article III standing is jurisdictional, the federal circuit courts are divided on whether judge-made prudential standing is jurisdictional, and the Supreme Court has not directly weighed in. The jurisdictional status of a doctrine has two important procedural consequences. First, litigants cannot forfeit a defense for lack of jurisdiction, meaning that such a defense can be raised for the first time on appeal. Second, federal courts have a sua sponte obligation to ensure that jurisdiction is proper. This Comment contends that prudential standing should not be considered jurisdictional but that federal courts should nevertheless have the discretion to raise the issue sua sponte. Prudential standing should not be considered jurisdictional because considering a court-created doctrine as jurisdictional violates the basic principle that only the Constitution and Congress hold the power to set federal courts’ jurisdiction, because a recent line of Supreme Court cases reinforces that court-created doctrines cannot be jurisdictional, and because prudential standing concerns litigants’ lack of rights on the merits, not federal courts’ adjudicatory authority. Federal courts, however, should have a discretionary sua sponte ability to raise the issue because prudential standing is an inherently flexible doctrine, and because federal courts raise in their discretion three other non-jurisdictional doctrines—the requirement that habeas corpus petitioners exhaust state remedies, Pullman abstention doctrine, and prudential ripeness doctrine—that, like prudential standing, originated as judge-made doctrines designed to protect interests beyond the litigants’ individual interests.

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