Appellate Judges Education Institute

Breakout 7: Standing: Who can Sue These Days? (And are State Courts More – or Less – Receptive?)

Session description

The concept of standing to sue in federal court has been undergoing major changes in the last few years, in cases such as Biden v. Nebraska and 303 Creative LLC v. Elenis (where standing was recognized with surprising ease) and Department of Education v. Brown (where standing was not recognized.) Meanwhile, state judicial systems can decide for themselves how widely to open their courthouse doors – without worrying about the limits of Article III of the U.S. Constitution. The panel will look at recent landmark standing decisions from the U.S. Supreme Court and other federal courts, and then contrast that with standing developments in state courts, highlighting the differences.

Learning objectives

Understand the differences between state and federal standing and their legal bases, i.e., Article III, state constitutions
Analyze the evolving limits of Article III standing, including by addressing recent landmark U.S. Supreme Court decisions
Analyze trends in state law standing, both independently and as related to developments in federal standing

Join us for an informative, interdisciplinary panel discussion of state and federal standing requirements, moderated by Montana Supreme Court Justice Laurie McKinnon and addressing evolving differences between state and federal jurisprudence as well as changes in the law of federal standing.

Dana Berliner, Senior Vice President and Litigation Director, Institute for Justice

Dana Berliner serves as Senior Vice President and Litigation Director at the Institute for Justice, a nonprofit public interest law firm whose mission is to end abuses of government power and secure the constitutional rights that allow all Americans to pursue their dreams. She oversees all of the Institute’s litigation and helps to set the litigation directions that that it will take. Ms. Berliner received her law and undergraduate degrees from Yale University. After law school, she clerked for Judge Jerry Smith on the U.S. Circuit Court of Appeals for the Fifth Circuit.

Kasia Szymborski Wolfkot, Senior Counsel, The Brennan Center

Kathrina (Kasia) Szymborski Wolfkot is senior counsel in the Brennan Center for Justice’s Judiciary Program. The Brennan Center is a law and policy organization that works to reform, revitalize, and when necessary, defend our country’s systems of democracy and justice. Ms. Wolfkot is also the managing editor of State Court Report, a Brennan Center publication focused on state courts and state constitutional law. Wolfkot is a graduate of Skidmore College and the University of Michigan Law School. She clerked for Judge Carl E. Stewart of the U.S. Court of Appeals for the Fifth Circuit. Prior to law school, Wolfkot worked as a journalist in Moscow, Russia.

Michael A. Scodro, Co-Chair, Supreme Court and Appellate Practice, Mayer Brown LLP

Michael A. Scodro is co-chair of the Supreme Court and Appellate Practice at Mayer Brown LLP in Chicago. Michael previously served as the Illinois Solicitor General, overseeing the civil and criminal appeals divisions in the state Attorney General’s Office and advising the Attorney General on significant litigation. An experienced appellate lawyer, Michael has argued dozens of cases in federal and state supreme and appellate courts, including three in the U.S. Supreme Court. He has served as chair of the Illinois Supreme Court’s Committee on Professional Responsibility, president of the Seventh Circuit Bar Association, chair of the ABA’s Council of Appellate Lawyers, and president of Illinois’ Appellate Lawyers Association. He was selected for membership in the American Law Institute and the American Academy of Appellate Lawyers. Michael teaches courses on the U.S. Supreme Court and the role and practice of state attorneys general as a Lecturer in Law at the University of Chicago Law School, and he speaks frequently on the Supreme Court and appellate practice. After graduating from Yale Law School, Michael served as a law clerk to the Honorable José A. Cabranes of the U.S. Court of Appeals for the Second Circuit and the Honorable Sandra Day O’Connor of the U.S. Supreme Court.

Hon. Laurie McKinnon, Justice, Montana Supreme Court (Moderator)

Laurie McKinnon is an Associate Justice on the Montana Supreme Court, where she has served since her election in 2012. Before joining that court, she served as a trial judge in Montana’s Ninth Judicial District Court, serving four counties for a six-year term. She began practicing in 1987 as a felony prosecutor in the Baltimore City State’s Attorney Office, then started her own practice. She and her family relocated to Montana, where she resumed her career as an attorney for public bodies, serving as Deputy Glacier and Teton County Attorney, until her election to the bench. She received her law degree from the University of Baltimore School of Law, and while serving on the bench received a master’s degree in Judicial Studies from the University of Nevada at Reno, and is currently pursuing a doctorate degree in the Judicial Studies Program. Justice McKinnon also serves on the Executive Committee of the Appellate Judges Conference of the American Bar Association.

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