Notes and Case Comments


By: Courtney Chin In 2013, the Supreme Court decided Clapper v. Amnesty International, denying standing to a group of human rights, labor, legal, and media organizations to challenge the constitutionality of a provision of the Foreign Intelligence Surveillance Act (“FISA”).  Justice Alito, writing for a 5-4 majority, held that the respondents lacked standing because the alleged injury was not “certainly impending,” the injury was not fairly traceable to the FISA provision, nor were the costs incurred by the respondents fairly traceable to the FISA provision.  Naturally, the four dissenters proposed an alternate view of the facts:  Justice Breyer compared the likelihood of the respondents’ injury not occurring as similar to the chance that “despite pouring rain, the streets will remain dry (due to the presence of a special chemical).”  He then criticized the majority, arguing that “certainty is not, and never has been, the touchstone of standing.” Although Clapper did not deal with […]

Standing Still: The Implications of Clapper for Environmental Plaintiffs’ Constitutional Standing


By: Eileen Monahan The Fifth Amendment to the United States Constitution provides, in part, that private property shall not “be taken for public use, without just compensation.”  Known as the Takings Clause, this provision limiting the government’s sovereign power of eminent domain may appear to be straightforward, but in practice is not.  Several categorical exceptions to this requirement have developed over time.  One such categorical exception is the navigational servitude, which allows the federal government to exercise its power to regulate and control the nation’s navigable waterways without paying compensation for the resulting economic loss. This Note will argue that the availability of such a blanket exception is unjustifiable.  First, it creates perverse incentives for the government to disproportionately take littoral land and produces inequitable results for landowners.  Second, historically based in the federal government’s power over interstate commerce, the policy justifications for the navigational servitude are no longer compelling in […]

The Navigational Servitude: The Role of a Categorical Exception Within a System of Ad-Hoc Review