views updated Jun 08 2018


In the United States, unelected, life-tenured federal judges may decide legal issues only when they are asked to do so by appropriate litigants. Such litigants are said to have standing to raise certain legal claims, including constitutional claims, in the federal courts.

A litigant's standing depends on two sets of criteria, one constitutionally required and one not, each ostensibly having three parts. The constitutional criteria derive from Article III's job description for federal judges, which permits them to declare law only when such a declaration is necessary to decide cases and controversies. These criteria center on the notion of an injured person's asking a court for a remedy against the responsible party, and each criterion corresponds to one of the three participants—to the plaintiff, the defendant, and the court, respectively. The plaintiff must assert that he suffered a cognizable personal injury; that the defendant's conduct caused the injury; and that the court's judgment is substantially likely to relieve it. The three nonconstitutional criteria for standing are "prudential" rules, self-imposed by the courts for their own governance, rules which Congress can eliminate if it chooses. These criteria, too, serve to diminish the frequency of substantive pronouncements by federal judges, but they focus on the legal basis of the suit, not on the plaintiff's actual injury. The first nonconstitutional criterion concerns representation: to secure judicial relief, injured litigants normally must assert that the injurious conduct violated their own legal rights, not the rights of third parties. The second assumes that government violations of everyone's undifferentiated legal rights are best left to political, not judicial, response: no one has standing if his or her legal position asserts "only the generalized interest of all citizens in constitutional governance." The third "prudential" criterion for standing seeks assurance that the law invoked plausibly protects the legal interest allegedly invaded: whatever interest is asserted must be "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question."

Standing issues rarely surface in traditional suits, but federal courts applying these guidelines frequently deny standing to "public interest" plaintiffs anxious to challenge the legality of government behavior. The aim is not only to prevent federal judges from proclaiming law unless such declarations are needed to resolve concrete disputes, but also to promote proper conditions for intelligent adjudication (including adversary presentation of the facts and legal arguments) and to foster adequate representation of affected interests. When litigants ask federal courts to restrict the constitutional authority of politically accountable public officials, moreover, apprehension about unwise or excessive judicial intervention heightens, and the standing limitations may be applied with particular force.

Collectively, the Supreme Court's standing criteria often overlap; they are applied flexibly—sometimes inconsistently—to give the Supreme Court considerable discretion to exercise or withhold its power to declare law. The way that discretion is exercised reflects any particular Court's ideology of judicial activism and restraint and the substantive, constitutional rights it is either eager or reluctant to enforce.

The refinements of standing doctrine illustrate this flexibility and discretion. The core requirement of cognizable personal injury, for example, demands that the plaintiff have suffered injury to an interest deemed deserving of judicial protection. Over time, the Court has expanded the category of judicially acknowledged injuries beyond economic harm to include reputational, environmental, aesthetic, associational, informational, organizational, and voter harms, among others. Because of its vision of constrained judicial power in a representative democracy, however, the Court steadfastly forbids taxpayers ' suits and citizens' suits asserting purely ideological harm, particularly the harms of frustration, distress, or apprehension born of unlawful government conduct. Resting on lack of cognizable injury, the ban on citizen standing thus appears constitutionally compelled, although it effectively duplicates the nonconstitutional barrier to asserting generalized grievances, which appears to rest on the absence of a cognizable legal interest. Less diffuse, but in allen v. wright (1984) nonetheless held an insufficiently personal injury, is the feeling of stigma arising from discrimination directed, not personally, but against other members of the plaintiff's race. If the type of injury is judicially approved and the plaintiff personally suffered it, however, the fact that many others have suffered it will not negate standing. For example, in united states v. scrap (1973) a student activist group was deemed to have standing based on widespread environmental injury.

Flexibility also characterizes the Court's degree of insistence on the remaining constitutional criteria. The closeness of the causal link between defendant's conduct and plaintiff's injury has varied from United States v. SCRAP, which accepted a loose connection between the Interstate Commerce Commission's approval of freight rate increases for scrap materials and increased trash problems in national parks, to Allen v. Wright (1984), which found too attenuated a seemingly closer link between the Internal Revenue Service's allegedly inadequate enforcement of the law requiring denial of tax exemptions to racially discriminatory private schools and "white flight" in public school districts undergoing desegregation. Similarly, insistence that judicial relief be substantially likely to redress plaintiff's injury has varied from Linda R. S. v. Richard D. (1973), where mothers of illegitimate children seeking to force prosecution of the fathers for nonsupport were denied standing because a court order supposedly would result only in jailing the fathers, not in increased support, to Duke Power Co. v. Carolina Environmental Study Group (1978), where neighbors of nuclear power plants, seeking relief from present injury caused by normal plant operation, were granted standing to contest (unsuccessfully) the constitutional validity of a federal statute limiting recovery of damages for potential nuclear disasters, despite considerable uncertainty that a legal victory for the plaintiffs would stop the plants' normal operations.

Of the nonconstitutional criteria, only the usual prohibition against representing third-party rights needs elaboration, primarily because of its different forms and its significant exceptions. When a personally injured plaintiff seeks to argue that the injurious conduct violated the legal rights of others, the prohibition, beyond serving the usual objectives of standing, serves also to protect nonlitigants who may not wish to assert their own rights or would do so differently (and perhaps more effectively) if they became litigants. Major exceptions to that prohibition respond to this policy by allowing representation, even of constitutional rights, when the Court concludes that the absent third parties would benefit rather than suffer from a substantive decision. One important example of this exception is the case in which third parties would have difficulty asserting their own rights, as in naacp v. alabama (1958), where the civil rights group was permitted to assert its members' right to remain anonymous. Another example is the case in which the disputed conduct affects special plaintiff-third party relationships in ways suggesting that the plaintiff and third-party interests coincide. Under this exception doctors can represent patient rights to abortion, private schools can represent parent rights to choose private education, and sellers can represent the rights of young consumers to buy beer or contraceptives.

The Court generally denies standing when persons constitutionally subject to regulation urge that the regulation would be unconstitutional in application to others. This rule preserves legislative policy in cases where the law is applied constitutionally. Again, however, there is an exception, invoked most often in first amendment challenges of vagueness and overbreadth, when the law's very existence would significantly inhibit others from exercising important constitutional rights and thus deter them from mounting their own challenge.

A final example is the case in which uninjured representatives seek to champion the legal rights of injured persons they represent outside of litigation. Thus, associations, not injured themselves, may sue on behalf of their members' injuries, provided that the members would have standing, the associations seek to protect interests germane to their purposes, and the claims and requested relief do not require individual member participation. And a state, which normally lacks standing as parens patriae to represent the claims of individual citizens, or even of all its citizens in opposition to the federal government, may represent its citizens when the injury alleged substantially affects the state's general population, especially if suit by individual citizens seems unlikely.

Like other justiciability doctrines, standing rules often thwart attempts to induce federal courts to make or reform constitutional or other law. How often the rules have that result will depend not only on the articulated criteria of standing but also on the Supreme Court's receptivity to the substance of the underlying claims and its judgment of the desirability and likelihood of political solutions.

Johnatan D. Varat


Nichol, Gene R., Jr. 1984 Rethinking Standing. California Law Review 72:68–102.

Scott, Kenneth E. 1973 Standing in the Supreme Court: A Functional Analysis. Harvard Law Review 86:645–692.

Vining, Joseph 1978 Legal Identity: The Coming of Age of Public Law. New Haven, Conn.: Yale University Press.


views updated Jun 08 2018


The legally protectible stake or interest that an individual has in a dispute that entitles him to bring the controversy before the court to obtain judicial relief.

Standing, sometimes referred to as standing to sue, is the name of the federal law doctrine that focuses on whether a prospective plaintiff can show that some personal legal interest has been invaded by the defendant. It is not enough that a person is merely interested as a member of the general public in the resolution of the dispute. The person must have a personal stake in the outcome of the controversy.

The standing doctrine is derived from the U.S. Constitution's Article III provision that federal courts have the power to hear "cases" arising under federal law and "controversies" involving certain types of parties. In the most fundamental application of the philosophy of judicial restraint, the U.S. Supreme Court has interpreted this language to forbid the rendering of advisory opinions.

Once a federal court determines that a real case or controversy exists, it must then ascertain whether the parties to the litigation have standing. The Supreme Court has developed an elaborate body of principles defining the nature and scope of standing. Basically, a plaintiff must have suffered some direct or substantial injury or be likely to suffer such an injury if a particular wrong is not redressed. A defendant must be the party responsible for perpetrating the alleged legal wrong.

Most standing issues arise over the enforcement of an allegedly unconstitutional statute, ordinance, or policy. One may challenge a law or policy on constitutional grounds if he can show that enforcement of the law or implementation of the policy infringes on an individual constitutional right, such as freedom of speech. For example, in tinker v. des moines independent community school district, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), high school officials in Des Moines, Iowa, had suspended students for wearing black armbands to school to protest U.S. involvement in the vietnam war. There was no question that the parents of the students had standing to challenge the restrictions on the wearing of armbands. Mere ideological opposition to a particular government policy, such as the Vietnam War, however, is not sufficient grounds to challenge that policy in court.

A significant economic injury or burden is sufficient to provide standing to sue, but in most situations a taxpayer does not have standing to challenge policies or programs that she is forced to support. In Frothingham v. Mellon, 288 F. 252 (C.A.D.C. 1923), the Supreme Court denied a federal taxpayer the right to challenge a federal program that she claimed violated the tenth amendment, which reserves certain powers to the states. The Court said that a party must show some "direct injury as the result of the statute's enforcement, and not merely that he suffers in some indefinite way common with people generally."

Although the Supreme Court made a narrow exception to this prohibition on taxpayer suits in Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968), granting standing to a taxpayer to challenge federal spending that would benefit parochial schools, the Court has never gone beyond that. In fact, there is some doubt as to the vitality of the Flast decision. In 1974 the Court denied standing to a taxpayer who sought to challenge Congress's exempting the central intelligence agency from the constitutional requirement under Article I, Section 9, Clause 7, that government expenditures be publicly reported (United States v. Richardson, 418 U.S. 166, 94 S. Ct. 2940, 41 L. Ed. 2d 678). Since Richardson the Court has continued to maintain the traditional barrier against taxpayer lawsuits.

The issue of standing has played a crucial role in class action lawsuits, especially those filed by environmental groups. In Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972), the Court denied standing to an environmental group that was challenging a decision by the secretary of the interior. The Court ruled that the sierra club had not demonstrated that its members would be substantially adversely affected by the secretary's decision. Later environmental class actions have overcome the standing hurdle by including specific harms that group members would suffer, thus avoiding the Court's rule against generalized concerns.

The issue of standing is more than a technical aspect of the judicial process. A grant or denial of standing determines who may challenge government policies and what types of policies may be challenged. Those who believe that the federal courts should not increase their power generally believe standing should be used to limit access to the courts by persons or groups seeking to change public policy. They believe the legislative branch should deal with these types of issues. Opponents of a strict standing test complain that plaintiffs never get a chance to prove their case in court. They believe that justice should not be denied by the application of judicially created doctrines such as standing.


Judicial Review.


views updated Jun 27 2018

stand·ing / ˈstanding/ • n. 1. position, status, or reputation: their standing in the community a man of high social standing. ∎  (standings) the table of scores indicating the relative positions of competitors in a sports contest: she heads the world championship standings.2. used to specify the length of time that something has lasted or that someone has fulfilled a particular role: an interdepartmental squabble of long standing.• adj. 1. (of a jump or a start in a running race) performed from rest or an upright position, without a run-up or the use of starting blocks.2. remaining in force or use; permanent: he has a standing invitation to visit them a standing army.3. (of water) stagnant or still.4. (of grain) not yet reaped and so still erect.5. Printing (of metal type) kept set up after use.PHRASES: all standing Sailing (chiefly with reference to a boat's stopping) without time to lower the good standing in favor or on good terms with someone: the companies wanted to stay in good standing with the government.leave someone/something standing inf. be much better or make much faster progress than someone or something else.

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