72 Fla. L. Rev. 741 (2020)
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Federal Courts


The requirement of standing to sue in federal court is familiar, but the
related requirement of standing to appeal within the Article III judiciary
is badly undertheorized. The Supreme Court’s opinions suggest (at least)
four constitutional rationales. Standing to appeal might serve the same
functional purposes as standing to sue, or it might follow from the fact
that appeals involve two separate courts, or it might be triggered because
the underlying case or controversy has become moot, or because it has
reached the point of final judgment.

Compounding the confusion, the requirement of standing to appeal
can have troubling consequences in the cases in which it arises most
frequently: when state officials refuse to defend state law against
constitutional attack and decline to appeal from an adverse judgment. In
an era of political polarization, state attorneys general increasingly find it
tempting to abandon the defense of laws supported by the opposing party.
Standing doctrine makes that situation worse, affording state officials the
opportunity to short-circuit appellate review for self-serving or partisan

After critically examining the possible constitutional theories, this
Article concludes that the requirement of standing to appeal is best
explained by the finality of the judgment and the conclusion of the
underlying “case” or “controversy.” On that account, however, Congress
is not powerless to facilitate appellate review, even in the absence of an
appeal by an injured party. Congress plays a primary role in determining
when a legal judgment becomes final, and it already postpones the point
of finality through a wide range of procedural devices. Consistent with
the Constitution, Congress could provide for automatic appeals by
operation of statute, for example, whenever a district court enters an
injunction against the enforcement of state law, or for judge-initiated
appeals in the discretion of the appellate court, on its own motion or at
the suggestion of the district court or a party.