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An important but overlooked case due to be decided tomorrow is First American Financial Corp. v. Edwards. The case is about Article III standing. The Court is reviewing a Ninth Circuit decision that set forth a permissive approach to congressionally created standing. I expect that the Court will view the Ninth Circuit’s approach as too permissive but nevertheless conclude that the plaintiff has standing. If there were five sure votes in the opposite direction, I would have expected to see the decision before now. We shall see soon enough.

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The Supreme Court heard oral argument last week in First American Financial Corp. v. Edwards. The case calls on the Supreme Court to address the relationship between Article III standing and federal causes of action for statutory damages. The Federalist Society recently posted my post-argument podcast on the case.

I don’t have a confident prediction about how the Supreme Court will decide the case. But with four Justices virtually certain to find standing (Breyer, Ginsburg, Kagan, and Sotomayor), the challenge for petitioners is to gain the votes of all of the remaining five Justices. (In this sense, the case is like the upcoming health care cases, and many others.)

The decision will depend on whether all five Justices that petitioners need are persuaded that the interest protected by the statute is sufficiently distinct from the interests protected by well-established causes of action that do not require the plaintiff to show consequential harm.

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