Injury-in-Fact, Justice-in-Fiction: Toward a More Realistic Definition of Injury in the Context of Unenforced Criminal Laws

This article argues that the "prosecution or the credible threat of prosecution" standard endorsed by the Supreme Court of the United States to analyze standing in challenges to criminal laws is too narrow. Part I seeks to counter the notion of unenforced criminal laws as "dead words" and "harmless empty shadows" by reviewing recent research from multiple disciplines, including psychology, sociology, and economics, which shows that unenforced laws have as strong an effect on individuals and society as prosecution or the threat of prosecution. Part II traces the history and rationale of the notion of standing and the requirement of injury and examines recent standing cases, arguing that there is room in Article III standing for a wider definition of injury caused by criminal laws.