Standing (Update)

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Standing law defines those who may obtain judicial redress in federal court. In suits between private individuals, there is usually little analytical difficulty in determining what constitutes judicial cognizable injury and thus who has standing to sue. But in suits by private individuals against the government, there can be considerable difficulty. In such cases, plaintiffs are sometimes not injured in a conventional sense, not suffering, for example, physical harm or monetary loss. Rather, plaintiffs sometimes sue as "private attorneys general," seeking judicial redress against allegedly illegal governmental conduct affecting the general population.

There are both constitutional and subconstitutional standing requirements. The constitutional requirement derives from Article III, which limits federal courts to deciding "cases" and "controversies." Under current law, a plaintiff may satisfy Article III by showing, first, that she has suffered "injury in fact," defined as a concrete and particularized invasion of a legally protected interest; second, that the injury is fairly traceable to defendant's conduct; and third, that the injury will likely be redressed by a favorable judicial decision.

A plaintiff may satisfy the subconstitutional standing requirement by showing that she has a cause of action under a statute, a common law rule, or a constitutional provision. In borderline cases, the Supreme Court has developed two approaches. First, in a series of administrative law cases that includes Association of Data Processing Service Organizations v. Camp (1970) and National Credit Union Administration v. First National Bank & Trust (1998), the Court has required a plaintiff to be "arguably within the zone of interests" of a relevant statute or constitutional guarantee. This test is essentially an instruction to construe statutes generously in favor of standing. Second, in another series of cases that includes Warth v.Seldin (1975), the Court has asked whether there is "prudential standing." A grant of prudential standing means that the Court, in the exercise of "prudence," has found a sufficiently clear indication of congressional intent to create a cause of action for plaintiff. In most prudential standing cases, the Court has declined to find standing.

Despite the Court's persistent efforts to fit standing decisions into the framework just described, the considerations involved are often too varied to be captured by general formulations. Cases applying the "injury in fact" criterion have been particularly unruly, producing decisions that are extremely difficult to reconcile. For example, in united states v. students challenging regulatory agency procedure (SCRAP) (1973), the Court found injury in fact for a group of law students seeking to compel the preparation of an Environmental Impact Statement analyzing possible environmental effects of a minuscule increase in railroad rates. The students alleged that the rate increase could cause environmental damage as a result of increased recycling costs. Further, in Havens Realty Corp. v. Coleman (1982), the Court found injury in fact for a professional black "tester" who had been told, falsely, that an apartment was not for rent, even though the tester had no actual desire to occupy the apartment. Yet, in lujan v. defenders of wildlife (1992), the Court refused to find injury in fact for wildlife enthusiasts who sought to compel agency consultation concerning federally funded projects that might adversely affect habitats for endangered species. The plaintiffs had previously visited the areas where the species lived but had no specific plans and no airplane tickets for return visits.

Among the many considerations involved in standing cases, perhaps the most important is separation of powers. In most cases, standing restrictions confine the role of the judiciary by reducing and sometimes even eliminating certain kinds of litigation. But in some cases, standing restrictions expand the role of the judiciary, because a judicial decision that plaintiff lacks Article III standing means that Congress may not grant standing. This phenomenon may be seen in two recent cases. In Lujan Congress had granted standing to "any person" to enforce the Endangered Species Act. The Court held that plaintiffs satisfied the statute but lacked Article III standing because they had suffered no injury in fact. In Raines v. Byrd (1997), Congress had granted standing to "any Member of Congress" to challenge the constitutionality of the federal law providing the President with a limited line-item veto. The Court held that members of Congress lacked Article III standing because they had not suffered "sufficiently concrete injury" from the law's operation.

At this point in its development, standing doctrine frequently does not correspond to the Court's actual decisions. As the second Justice john marshall harlan complained more than thirty years ago in flast v. cohen (1968), standing is a "word game played by secret rules." But given the importance of standing decisions, it is perhaps better for now to have the right results than the right doctrine. One may hope that eventually, in the great tradition of common law courts, the Court will decide enough standing cases to understand what it has done, and from those cases to construct a coherent legal doctrine.

William A. Fletcher


Fletcher, William A. 1988 The Structure of Standing. Yale Law Journal 98:221–291.

Pushaw, Robert J. 1996 Justiciability and Separation of Powers: A Neo-Federalist Approach. Cornell Law Review 81: 394–512.

Sunstein, Cass R. 1988 Standing and the Privatization of Public Law. Columbia Law Review 88:1432–1481.