40 Stan. L. Rev. 1371, *
Copyright © The Board of Trustees of
Leland Stanford Junior University, 1988.
Stanford Law Review
40 Stan. L. Rev. 1371
LENGTH: 102273 words
ARTICLE: The Metaphor of Standing and the Problem of
Steven L. Winter *
Copyright © 1987 by Steven Winter.
... [C]onstitutional standing [is] ... a word game played by secret
rules.... Characterized neither by the private rights model of the seven common
law forms of action nor by the "injury-in-fact" paradigm of modern standing
doctrine, these matters took forms astonishingly similar to the "standingless"
public action or "private attorney general" model that modern standing law is
designed to thwart.... Adjudicatory models premised on a part-whole schema,
like mandamus, are ultimately crowded out of our concept of justiciable
controversies.... Procedurally, the models of access for raising claims of
public right allowed individuals to command the attention of the law, as in the
private rights model.... The Frothingham Court began its analysis with a
discussion of nonconstitutional doctrines of equity, proceeded to reason from
the constituent model in a way that shows clear prototype effects, then
rejected the intermediate status of the public rights model, and finally raised
constitutional considerations that helped lead to a modern conception of
standing.... For over a hundred years, the metaphor of "standing" was shorthand
for the question of whether a plaintiff had asserted claims that a court of
equity would enforce....
But the greatest thing by far is to be a master of the metaphor. n1
[*1372] I. THE QUEST FOR COHERENCE
[C]onstitutional standing [is] ... a word game played by secret rules.
"Come, Watson, come!" he cried. "The game is afoot."
It is almost de rigueur for articles on standing to quote Professor
Freund's testimony to Congress that the concept of standing is "among the most
amorphous in the entire domain of public law." n4 One of the traditional
criticisms of standing law is that it is confusing and seemingly incoherent.
Even the staunchest judicial advocates of the doctrine readily admit as much:
"We need not mince words when we say that the concept of 'Art. III standing'
has not been defined with complete consistency...." n5
Nevertheless, the courts treat standing as a "bedrock requirement"
delimiting the scope of the judicial process. n6 It is generally accepted black
letter law that the "case or controversy" requirement of article III means that
a party who invokes the court's authority must show personal injury or
"injury-in-fact." n7 The Burger Court has expanded the [*1373]
"irreducible minimum" n8 to include the requirements that the plaintiff also
show that the injury was caused by the defendant's allegedly illegal conduct
and that the injury is one that can be redressed by the court's decision. n9
The net effect has been increasingly to restrict citizens' claims against their
government. The Court has insisted on these minima with an amazing degree of
orthodoxy: "Any other conclusion," the Court has warned, "would mean that the
Founding Fathers intended to set up something in the nature of an Athenian
democracy or a New England town meeting to oversee the conduct of the National
Government by means of lawsuits in federal courts." n10
Despite the purported constitutional warrant and the seeming clarity of
the new black letter, standing law remains largely intractable. We have
traditionally bridged the gaps in one of two ways. The traditionalists have
attempted to harmonize the cases in terms of a coherent doctrine of standing
n11 or to elaborate a coherent doctrine in place of standing. n12 Others have
acknowledged openly the doctrinal and conceptual inconsistencies of the cases
and accounted for them in either a Realist or post-Realist manner. Commentators
in this group have concluded that the doctrine of standing is either a judicial
mask for the exercise of prudence to avoid decisionmaking n13 or a
sophisticated manipulation for the sub rosa decision of cases on their merits.
[*1374] The purpose of this article is to suggest an
alternative vision. Its modus operandi is to employ recent scholarship on human
cognition to map the underlying conceptual structure of standing law and, thus,
to provide a better understanding of its incoherences. Implicit in this
approach is the assertion that concepts do matter: that one cannot account for
standing doctrine simply in terms of instrumental manipulation. Rather, the
underlying concepts frame and constrain the instrumentalist choices. The basic
tools, which I explain in Section II and employ throughout, are the concepts of
cognitive models and metaphors.
Part of this endeavor will involve a challenge to the historical
assumption that the Constitution speaks to the question ordinarily thought to
be comprehended within the rubric of standing. Rather, a painstaking search of
the historical material demonstrates that — for the first 150 years of the
Republic — the Framers, the first Congresses, and the Court were oblivious
to the modern conception either that standing is a component of the
constitutional phrase "cases or controversies" or that it is a prerequisite for
seeking governmental compliance with the law. I will show that the modern
doctrine of standing is a distinctly twentieth century product that was
fashioned out of other doctrinal materials largely through the conscious
efforts of Justices Brandeis and Frankfurter. I will use the materials on
models and metaphors to describe how this shaping was effectuated.
I am not so heretical as to suggest that there is no such thing as an
article III "case or controversy" requirement that limits the judicial power to
actual disputes. But a fuller account of our history shows that article III was
not limited to the kinds of private disputes characterized by standing. I argue
that there are serious negative consequences to the idea that the legal system
is or should be circumscribed by such a concept. This article seeks instead a
historically more accurate and democratically more meaningful approach to the
uses of adjudication in a self-governing society.
A recent case, City of Los Angeles v. Lyons, n15 highlights the
dysfunctional aspects of current standing doctrine that justify this endeavor.
Adolph [*1375] Lyons was stopped for a traffic violation by Los
Angeles police officers. He was subjected to a restraining chokehold and
severely injured. He claimed that the police were employing such chokeholds
routinely, even though they were not threatened with the use of deadly force by
the victim. The record demonstrated that the chokeholds were often fatal.
The Supreme Court held that Mr. Lyons did not have standing to obtain an
injunction barring the practice. In the majority's view, it was entirely
speculative that Mr. Lyons would ever again be subjected to this potentially
fatal practice. n16 The four dissenters complained that: "The court's decision
removes an entire class of constitutional violations from the equitable powers
of a federal court.... The federal judicial power is now limited to levying a
toll for such a systematic constitutional violation." n17
On one level, Lyons represents a jurisprudential dispute between the
majority and the dissent over the relative efficacy of retrospective damage
remedies and prospective injunctive relief to deter constitutional violations.
On another level, this case concerns a related dispute about the role of
federal courts in our system. But there was an underlying reality: Human lives
were at stake. Mr. Lyons obtained a preliminary injunction against the
chokehold practice; both the court of appeals and the Supreme Court issued a
stay of that order while the appeal was pending. Six additional people were
choked to death by Los Angeles police while the courts determined that no one
had standing to stop the practice. n18 Yet, two years later when the Court
considered the same substantive constitutional theory in a related factual
context, it held that it was unconstitutional for the police to use deadly
force against nondangerous suspects. This holding was precisely the same as
that sought by Mr. Lyons on the merits of his case. n19
There are many other examples of dysfunctionality; I will discuss them
in later sections. At this point, it may be more helpful to describe some of
the problems of standing law that I hope to illuminate.
1. The historical conundrum.
The notion that standing is a bedrock requirement of constitutional law
has a surprisingly short history. Frothingham v. Mellon, n20 which rejected
[*1376] a taxpayer suit to enjoin a federal spending program, is
generally thought of as the first modern standing case. n21 In fact, it is not.
Fairchild v. Hughes, n22 decided a year before Frothingham and authored by
Justice Brandeis, was the first case to reject a taxpayer suit because the
"[p]laintiff's alleged interest in the question submitted is not such as to
afford a basis for this proceeding." n23 The Frothingham Court reached its
conclusion that Ms. Frothingham could not sue without citing or identifying any
precedent either for that conclusion or the premises it offered in support of
that conclusion. n24
Perhaps more surprising, Frothingham was preceded by three federal and
two state taxpayer actions that the Court adjudicated on the merits. n25
Moreover, as late as 1935, neither Professors Frankfurter nor Hart discussed
Frothingham, Fairchild, or the concept of standing in their writings on article
III justiciability limits on federal courts. n26 All of this
[*1377] is unusual to say the least. One legitimately may wonder
how a constitutional doctrine now said to inhere in article III's "case or
controversy" language could be so late in making an appearance, do so with so
skimpy a pedigree, and take so long to be recognized even by the primary
academic expositors of the law of federal courts.
The traditional answer places heavy emphasis on the function of the
common law writ system to do the work now done by the concept of standing. n27
According to this analysis, the concept of standing could only arise after the
breakdown of the writ system and of common law pleading. Standing then
developed as an elaboration of the essence of the private causes of action
previously embodied in the writs. n28 As such, the modern concept of standing,
with its focus on injury-in-fact, is thought to be only the preservation of the
private rights model n29 of adjudication known to the Framers.
The traditional account is, however, inconsistent with the historical
data. It cannot account for the five taxpayer actions that preceded Frothingham
and Fairchild. n30 Moreover, it ignores the established practice in state
courts, throughout the nineteenth century, that provided for public rights
suits brought by plaintiffs who had no personal interest or injury-in-fact. n31
Finally, it is disproved by the fact that the Supreme Court, in 1875,
specifically approved of this public rights [*1378] practice in a
federal case without any constitutional objection. n32 I expand and develop
this history in Section III; I then chart and attempt to explain its demise in
2. The terminological conundrum.
The term "standing" does not appear either in Frothingham or in
Fairchild. Consistent with the traditional historical explanation of the late
arrival of standing doctrine, Professor Vining has suggested that the American
usage of the term developed haphazardly in this century without specific
introduction. n33 He has also hypothesized that it was derived from the late
nineteenth century English parliamentary term locus standii. n34 As I
demonstrate below, however, each of these assumptions is incorrect. The term
"standing" was in use early in the nineteenth century and did have two
apparently accepted meanings unrelated to the modern doctrine of standing. n35
The explicit adoption of the term to signal a new article III concept of
justiciability occurs first in Justice Frankfurter's concurring opinion in
Coleman v. Miller. n36
3. The Frothingham conundrum.
Frothingham is sometimes read as embodying only the prudential aspects
[*1379] of standing, n37 as constrasted with the core, article III
criteria of injury-in-fact, causation, and redressability. n38 Nevertheless,
sixty years later, "Frothingham's reasoning remains obscure." n39 As I
indicated above, Frothingham drew neither on the existing terminology of
standing nor on the existing precedent of Fairchild. In light of the modern
doctrine of standing, this seems strange. But, viewed in its original
historical context, much of what is cryptic in Frothingham can be understood in
terms of traditional equity doctrines unrelated to standing, the earlier
prerogative writ practice, and older justiciability doctrine. I develop this
analysis in Section IV.
4. The causation conundrum.
In the 1970s, the Burger Court added causation as an element of the
threshold determination of standing. n40 Professor Chayes has observed that:
"Any first year law student, at least after he has read the Palsgraf case,
could predict what would happen when the metaphysically undisciplined concept
of causation is introduced...." n41 From tort law, we would have assumed that
the necessary causal chains would vary as different policies and purposes are
implicated. n42 Yet one of the oddities of standing law is that, in its
treatment of the issue of causation, a strange uniformity predominates instead.
n43 I explain the conceptual groundwork for this phenomenon in Section II and
further explore the connections in Section V.
5. The injury conundrum.
One of the constant analytic loops of standing law is the
characterization of the injury that is sufficient to confer standing. Under the
older legal interest test, the relationship between standing and the merits
[*1380] was "demonstrably circular," n44 because what conferred
standing was a legally protected interest, and you only had that if the court
agreed with you on the merits of your legal theory. The focus of modern
standing law on an objective injury-in-fact, which was designed to straighten
this out, has proved to be equally dependent on underlying legal assumptions.
n45 Thus, in Baker v. Carr, n46 a voter's interest in the relative weight of
his or her vote — a matter that is a purely legal construct dependent on
one's conceptualization of a properly weighted vote n47 — may be
sufficient. Similarly, the Court has recognized Congress's power "to create new
interests the invasion of which will confer standing." n48 Thus, a request for
information under the Freedom of Information Act n49 is a justiciable
controversy even without the usual showing that the person has suffered any
"palpable injury." n50
This conundrum is more intractable when one considers United States v.
Richardson. n51 There, the Court rejected a parallel claim under the statement
and account clause n52 for information about government expenditures because
the plaintiff was not "in danger of suffering any particular concrete
injury...." n53 In fact, the Court has treated these kinds of constitutional
claims as only generalized, political grievances and not "injury of any kind,
economic or otherwise, sufficient to confer standing." n54 I will explore the
inherent inconsistencies of these doctrines in Section V and will attempt to
provide an explanation for and a different means of reconstructing these issues
in Section VI.
[*1381] 6. The particularization conundrum.
One of the primary thrusts of standing law has been the requirement of
an injury particular to the individual invoking the court's power. n55 This
particularization requirement is usually justified as serving the separation of
powers policies often identified with standing law: It "forecloses the
conversion of courts of the United States into judicial versions of college
debating forums." n56 Yet the Court continues to reaffirm the decision in
United States v. SCRAP, n57 where the injury that supported standing was an
injury to the environment shared by everyone. Similarly, in the fair housing
context, the Court continues to recognize interests in integrated living that
can be asserted by citizens living in relatively broad geographic areas, such
as entire counties. n58
This apparent inconsistency in the application of the particularization
requirement has led some commentators to ask whether there are some
constitutional rights that are "group rights" and others that are "personal
rights." n59 In Section VI, I suggest that this false dichotomy is an artifact
of standing law, that it is out of sync with social reality, and that it is
responsible for much of the perceived incoherence of standing doctrine.
7. The democracy conundrum
The most appealing justification of standing law is that, in preserving
the separation of powers, it protects the majoritarian political process from
undue intrusion by the unelected judiciary. But not all issues are amenable to
the political process. All too often, the inevitable consequence of a decision
denying standing is "that the most injurious and widespread Governmental
actions c[an] be questioned by nobody." n60 In those cases, standing law
undermines the notion of accountability that supports a constitutional system
premised on the rule of law. In Sections VI C and D, I propose a means of
recapturing these values.
There is a single thread that holds together the tapestry of this
article. What lies behind each of these conundra is our current
over-glorification of individualism. It was not always so. At the time of the
Framers and in succeeding generations, American law provided several
constitutionally acceptable models for the adjudication of group rights at the
behest of any member of the public, without regard to the necessity
[*1382] of personal interest, injury, or standing. In this article,
I apply the concepts of cognitive models and of metaphor to explain this
history and how these models were lost. I will also chart how doctrines
unrelated to article III were successfully fashioned by liberal justices into
an individualist article III limitation on an activist conservative Court. I
will then dissect some of the more important modern standing cases to show the
disordering effects of standing on our legal analysis and of the private rights
model when applied to the public context.
In the final section, I will construct a framework for reconstituting
standing doctrine. The warp of that attempt is provided by those modern
justiciability cases which have already implicitly abandoned the
unidimensional, individualist model of standing. The woof is provided by a
theory of human cognition which demonstrates that multiple models and metaphors
are necessary to meaningful interaction with the world. Because the
individualist weave of current doctrine interferes with meaningful
self-governance, I conclude with a discussion of the role of litigation in a
democratic society that would employ models of "standing" better grounded in
the nature of human cognition and more reflective of human experience. The
purpose of this endeavor is to create new models, models that are
reconstitutive rather than alienating.
II. THE MEANING OF A METAPHOR
Much of the difficulty, as regards legal terminology, arises from the
fact that many of our words were originally applicable only to physical things;
so that their use in connection with legal relations is, strictly speaking,
figurative or fictional. n61
A. Metaphors of Thought
The law is committed to the use of reason. New discoveries about the
nature of reason, therefore, have a natural and necessary place in legal
scholarship. To fail to recognize them ultimately would be to deny the role of
reason in law.
In ordinary legal discourse, we treat the term "standing" as a legal
term of art — a label for a concept or body of doctrine. But much of what
goes on in standing can be understood in terms of metaphors and their relation
to human cognition. The key to understanding — and to [*1383]
unlocking the barrier of standing law — lies in an appreciation that the
term "standing" is a metaphor. n62 Its origin no doubt comes from the physical
practices of the courtroom: A court will only hear a participant if he or she
is standing. "Standing" is therefore a natural metaphor for when a court will
consider a litigant's claim; n63 the metaphor is motivated by our experience.
The power of a metaphor is that it colors and controls our subsequent
thinking about its subject. "This is so, in part, because the concepts by which
language expresses an otherwise unrepresentable ... reality are themselves
generalizations importing preconceptions about the reality to be expressed."
n65 Recent scholarship on human cognition suggests that metaphor is powerful
because it is a fundamental component of human reasoning. n66 Metaphor enables
us to see systems of analogies not previously recognized. n67 It allows us to
use a source domain [*1384] with an existing conceptual structure
to understand and structure another conceptual domain. n68 That is, the
structure or attributes of the source domain are "carried over" n69 and applied
to the target domain.
This process of metaphoric projection is essentially the same as the way
in which we use models. "[M]odels ... too, bring about a wedding of disparate
subjects, by a distinctive operation of transfer of implications of relatively
well-organized cognitive fields." n70 A model, thus, is another way of
describing the source domain of a metaphor or an analogy. Recent scholarship
indicates that these reasoning processes are cognitively and epistemologically
There is a developing body of work on human cognition which suggests
that human thought is grounded in physical experience and extended by means of
idealized cognitive models and metaphoric projections. n71 According to this
theory, basic preconceptual experiences (or schema) provide the organizing
principles for the construction of conceptual models. n72 Examples include link
schema (such as the umbilical cord, hand holding); container schema (we
experience our [*1385] bodies as having an in-out orientation);
part-whole schema (we experience directly the relationships between our hands
and the rest of the body); n73 and source-path-goal schema (from earliest
childhood, we move from one place to another to obtain desired objects). n74
The human capacity to conceptualize allows us to project these structures and
to use them to organize other aspects of our experience. To take a simple
example, we conceptualize purposes in terms of the source-path-goal schema;
this gives rise to systematic source-path-goal metaphors that we use in our
thinking about purposes. We can therefore perceive our purposive efforts as
going a long way toward our goal, conceptualize something or somebody that
interferes with our purposes as an obstacle that gets in our way, and describe
some of our failings in terms of being sidetracked. n75
An important part of this theory is premised on the phenomenon of
prototype effects. In the classical theory of categorization, all objects
having the same relevant criteria are classed together. In this view, no
category member is any more "representative" of a category than another.
Empirical work in psychology, however, has shown that people within cultures,
and sometimes across cultures, n76 pick out the same "prototypes" or best
examples of categories. Thus, robins and sparrows are typically identified as
prototypical birds; owls and eagles, although birds, are not viewed as
What explains this phenomenon is the notion that categories have an
internal structure which produces these perceptions of best examples. The claim
is that categories are structured by means of idealized cognitive models —
culturally shared "theories" of how to organize some portion of our experience.
These models may be organized in terms of image-schemata like the
source-path-goal schema or in terms of a group of related propositions grounded
in a physical/cultural experience. An example is the stereotypical
conceptualization of "mother" by means of an idealized cognitive model that
assumes natural childbirth by a woman who is married to the biological father,
and who is also the primary nurturer and full-time caretaker of the child.
Women who fit this idealized cognitive model are prototypical "mothers" and are
referred to as such. But nonprototypical mothers are marked as such by the
linguistic conventions resulting from this model: They are stepmothers,
surrogate mothers, biological mothers, foster mothers, working mothers, or
unwed [*1386] mothers. n78 Thus, the overall category of "mother"
can be understood as a radial category — that is, a category defined by a
central model extended by certain "conventionalized variants." n79
Because "prototypes act as cognitive reference points of various sorts
and form the basis for inferences," n80 they tend to play an important role in
reasoning about categories. Sometimes, we may not distinguish the variants from
the prototype of the idealized cognitive model. An extreme example is when a
child thinks that the teacher or daycare worker is the mother of the other
children. In that case, we have a radical prototype effect in which the
prototype overshadows the rest of the category. Other times, we simply fail to
perceive the variants as examples of the same category; some might not see any
of the nonprototypical mothers as real mothers. In that case, we have a
reduction-to-prototype effect in which the category is reduced to the central
case of the model, resulting in the exclusion of nonprototypical cases. One
consequence of these extreme prototype effects n81 is that the variants may be
left unexpressed by the linguistic conventions of the culture. Because they
have no name, these variants become suppressed aspects of our social
consciousness. Examples would be women who supply an egg to be planted in
someone else's womb, legal guardians who do not provide nurturance (Auntie
Mame), or transsexuals who had a child before their sex change operation.
B. "Standing" as Metaphor
To the reader unfamiliar with this new scholarship, this may seem either
strange or far afield for an article about the law of standing. But by bringing
to the surface the models and metaphors that animate standard legal thinking,
we will be able to see and talk about both the history of standing and
troublesome aspects of the doctrine in a new and enlightening way.
Metaphor is successful in structuring understanding — that is,
metaphor is interactive and has ontological effect — because in organizing
our [*1387] view of the target domain it both highlights
similarities with the source domain and suppresses and hides dissimilarities,
which become a species of epistemic "noise." n82 Metaphor can, thus, have as
great a potential to mislead as to enlighten.
[W]hile metaphors can be abused in many different ways, the most serious
and interesting danger is that a given metaphor or its allegorical extension
may be transformed into myth.... [M]yth results when the mask, lens filter, or
construing subject is mistaken for or equated with the subject construed. By
suppressing those aspects of the principal subject which are not amenable to
the subsidiary subject, or by allowing the subsidiary subject to exert an
undetected influence on the principal subject, the difference between the two
referents of the metaphorical sign focus tends to be lost altogether. The
metaphor is turned into, not only a literal truth, but the literal truth about
the principal subject in question. n83
The metaphor of "standing" is a myth that has become "the literal truth"
and shaped — or misshaped — our thinking about adjudication. It has
shaped our thinking about adjudication to conform to two separate "truths"
embedded in the metaphor, and to think about them as one. The first is the
"truth" of individualism: One stands alone; one stands up; one stands apart;
one stands out; one stands head and shoulders above the crowd.
The metaphor of "standing" is thus the lens through which we view the
question of who has rights and who may assert them. Through this lens we see
only the disconnected individual in a fragmented society. But this perspective
obscures the fact that individuals exist only as part of groups and larger
communities of interest. And it obscures our ability to think about how best to
protect and effectuate those interests in an interdependent world. In the
metaphorically structured reality of [*1388] the law of standing,
there are no forests and no ecosystems. There are only trees; and only the
trees have "standing." n84
The second "truth" embodied in the metaphor is that the individual must
have a particular kind of relationship to the court whose power he or she is
seeking to invoke: A court will only consider what a party has to say if he or
she is standing (read: has "standing"). This view colors our thinking because
it focuses us on the relationship between a party's status and a generalized
conception of legal process.
Modern standing law defines this relationship between the individual and
the process in terms of a particular cognitive model: the private rights model.
We structure this model by means of two metaphors premised on the
source-path-goal schema: a causal source-path-goal metaphor and a remedial
source-path-goal metaphor. We identify the subject matter of a lawsuit through
the elements of the causal schema. n85 The defendant's act is the source, the
causal chain is the path, and the plaintiff's injury is the goal. The remedial
source-path-goal metaphor is virtually a mirror image of the causal one: The
individual's injury is the source of a process that has as its goal an order
from the court redressing that injury; the path that connects them is the
plaintiff's proof that the acts of the defendant caused the injury. n86 The
mirror image quality of these two source-path-goal metaphors gives rise to the
conception of damages and other forms of legal redress as designed "to put the
plaintiff back in the position he occupied" n87 (or as near as possible) before
occurrence of the legal wrong.
The model just described is the idealized cognitive model of a private
[*1389] cause of action. n88 The tripartite test of standing which
focuses on injury, causation, and redressability is thus an extrapolation from
the essential elements of the source-path-goal schema of the private rights
model. This reductive legal test is a natural byproduct of the "standing"
metaphor's ontological effect.
This analysis may seem reminiscent of the traditional view of the
origins and functions of the law of standing that I referred to above. n89 What
differentiates these perspectives is that the traditional view sees standing
law as a rational deduction from objective historical practice. In contrast, I
am suggesting that it is historically incorrect and, thus, can only be
explained as a function of particular cognitive processes. My view is premised
on the recognition that the use of a particular cognitive model has ontological
effects in the real world. For example, the primacy of purpose or intent in the
definition of widely disparate causes of action n90 is the result of a
coherence prototype effect n91 arising from the [*1390] overlap of
related cognitive models. Our use of the causal source-path-goal metaphor to
conceptualize the subject matter of a lawsuit overlaps with our use of
source-path-goal metaphors to structure our view of both purposes and
causation. A cause of action is defined in terms of the confluence or
intersection of these source-path-goal metaphors. In defining causes of action,
we unconsciously experience purpose as prototypical because it is coherent
— that is, it fits the entailments of all three uses of the schema.
Thus, we do not ordinarily define a cause of action in terms of the
experience of the plaintiff (the source of the remedial source-path-goal
metaphor). n92 Rather, we define it in terms of the purposive, causal aspects
of defendant's behavior. This explains the Court's otherwise bizarre statement
in Daniels v. Williams that "the word 'deprive' in the Due Process Clause
connote[s] more than a negligent act...." n93 The victim, of course,
experiences precisely the same physical deprivation whatever the defendant's
mental state. Similarly, a bystander who simply observes the events would see
exactly the same physical actions with exactly the same consequences for the
victim regardless of the defendant's state of mind. But the Court, whose view
of the scenario is necessarily mediated by cognitive processes, perceives a
different and narrower reality. The Court then asserts that its perception is
the product of a conventional linguistic expression (that is, "the word ...
[*1391] connote[s]"). n94
There are analogous narrowing effects in the context of standing. When
the metaphor of "standing" becomes the conduit of certain "truths," it
structures our perception of the boundaries of the legal world in a way that is
distorting. n95 The "standing" metaphor affects both how we perceive our past
and what we receive from it in terms of available legal tools. n96 Viewed
through the lens of "standing," adjudication was always about the settlement of
private disputes; questions of public values are implicated only incidentally.
But this was not always the case. At the time of the Framers,
non-individualistic, group models of adjudication, like mandamus and informers'
actions, had been designed to deal with public issues. n97 These public rights
models were structured in terms of other schemata very much at odds with the
modern conceptualization of standing. The "standing" metaphor, therefore,
deprives us of a knowledge of our own history. As a result, we lose an
understanding of what that history could say to us about our possibilities.
The "standing" metaphor also interferes with our practical ability to
face the underlying substantive issues that confront us. When we focus in
standing cases on what the metaphor makes us see, we miss some of the
suppressed aspects of our reality. The law of standing is, thus, an example of
the obfuscatory power of metaphor. n98 We focus on issues such as the role of
prudence in standing law or the relationship between standing and the
separation of powers, while other real and important issues in the cases remain
hidden and largely unexamined. n99 In [*1392] a case like Lyons,
the substantive issue left unexamined may be a matter of life or death.
In every standing case, the unexamined issues concern the nature of the
right that society is being asked to recognize and the shape of the correlative
remedy that it is willing to bestow. They concern the role of law in shaping a
self-governing society. Viewed from this perspective, the question "who may
sue?" is really a question of "what are rights and how may they best be
effectuated?" n100 — a question at the heart of law. Standing obscures
consideration and analysis of the underlying questions of rights and remedies,
of policies and values, by imposing a single, unidimensional conceptual
ordering of the process of adjudication. But, these questions in fact present
disparate policy choices that a democratic society must make across an entire
spectrum of vastly different problems of social organization.
Analytically, then, standing doctrine is neither a series of rules about
when a court will reach the merits nor a shill for a decision on the merits. It
is a determination that, regardless of the blinders we employ, necessarily
entails considerations that go to the merits. It is not so much a question of
the who or the when, n101 as it is inevitably a question of the what. Standing
is a decision about the scope of and the policies governing rights and remedies
in the underlying subject matter area. Its shape can therefore change from area
to area: The question "who may sue?" will be answered differently depending on
what they wish to sue about. It may be answered differently in a first
amendment case than in an antitrust or tax case. In each, it is a question
about how far the benefits of the particular law at issue extend, about the
ability of those affected to assert their interests, and about what we gain and
what [*1393] we lose when we encourage perception of and action
upon shared interests. It is these important questions of policies and values
that are obscured by the metaphoric individualist and process oriented approach
A determination of who has standing, moreover, is a determination about
the way society is shaped and structured. In structuring and ordering the
universe of legal relationships, standing law inevitably orders the way rights
and other legal interests may be distributed. When we persist in seeing only
the individual as a cognizable social unit, we limit also the recognizable
interests that are available for our consideration either in adjudication or
legislation. Thus, for example, there is no meaningful legal interest in a
public report of Central Intelligence Agency appropriations because no
individual can document a concrete injury as a result of the lack of knowledge
about these appropriations. n102 But once a court has said that the citizen has
suffered no injury, it will be difficult for the rest of society to see why it
should be concerned about the issue at all. If no one is harmed, there seems
little reason to devote time and energy in the legislative process to deal with
what appears to be a nonproblem. Standing law thus becomes a sort of "harmless
error" doctrine for the political process. In this way too, our perception of
the who affects our understanding of the what. n103
The question of standing, thus, is also a question about the nature of
our relationships in society and our ability to sustain our community. It
divides us from one another by reinforcing our individual and conflicting
self-interests and by submerging our common stake in the community. It
alienates us so that we do not control our government or, ultimately, our
I have stated my thesis. But the test of a theory is in its application.
I will develop these ideas in the nitty-gritty of legal doctrine and real
cases. We begin with our history.
[*1394] III. THE ORIGINS OF THE PUBLIC RIGHTS
These ... are my tools of trade. A lawyer without history or
literature is a mechanic, a mere working mason; if he possesses some knowledge
of these he may venture to call himself an architect. n104
A. Of Framers and Relators, Informers and the Forms of Action
A famous Holmesian dictum has it that "a page of history is worth a
volume of logic." n105 The history of standing suggests, however, that history
without logic can be easily mislaid. In this section, we will rediscover that
history and reconstruct its logic.
The modern doctrine of standing often is justified as grounded in a
historical understanding of the language of article III respecting "case[s] or
controvers[ies]" or "the judicial Power of the United States...." n106 Justice
Frankfurter argued that the provisions of article III:
mean that a court will not decide a question unless the nature of the
action challenged, the kind of injury inflicted, and the relationship between
the parties are such that judicial determination is consonant with what was,
generally speaking, the business of the Colonial courts and the courts of
Westminster when the Constitution was framed. n107
Recent decisions continue to reflect this syllogism. n108 Yet. the
English, colonial, and post-constitutional practices suggest that the
contemporaneous understanding of the "case or controversy" clause considered as
[*1395] justiciable actions concerning general governmental
unlawfulness, even in the absence of injury to any specific person, and even
when prosecuted by any common citizen with information about the alleged
illegality. In other words, there was a public rights model structured in terms
of alternative schemata.
At the time of the Framers, the concept of justiciability did not
embrace notions of standing as we think about them today. It was necessary that
a legal question "assume such a form that the judicial power is capable of
acting on it." n109 But the Court did not express that concept in terms of
"standing" or the essentials of a private cause of action. Rather, it expressed
it in formalistic terms, in what I shall call the syllogism of the forms:
"[Judicial] power is capable of acting only when the subject is submitted to
it, by a party who asserts his rights in the form prescribed by law. It then
becomes a case...." n110 This understanding of justiciability predominated
until the middle of the twentieth century, from Marshall n111 to Story n112 to
Field n113 to Day n114 to Taft n115 to Brandeis. n116 What a court looked for
was whether the matter before it fit one of the recognized forms of action.
This justiciability standard reflected the mediating influence of the
common law forms of actions on the procedure and substance of private rights.
Law was that body of rules that defined the rights of citizens and,
concurrently and coextensively, provided a remedy to the injured party. The
forms of action stood as the gatekeepers of this system. Thus Blackstone could
speak simultaneously of "the several injuries [*1396] cognizable by
the courts of common law, with the respective remedies applicable to each
particular injury," n117 and of the principle "that where there is a legal
right there is also a legal remedy, by suit or action at law, whenever that
right is invaded." n118 Based upon these principles, Chief Justice Marshall
could draw the more extensive conclusion that "[t]he very essence of civil
liberty certainly consists in the right of every individual to claim the
protection of the laws, whenever he receives an injury." n119 Under the
eighteenth century common law, rights were synonymous with remedies, n120
remedies were synonymous with the forms of action, and, by algebraic logic, the
forms of action were synonymous with the concept of redressable (that is,
cognizable) injuries. In this traditional doctrine, one can see reflected the
mirror image quality of the remedial and causal metaphors of the private rights
One might infer from this that the practice at the time of the Framers
was consistent with the private rights model of the "case and controversy"
requirement and modern standing law's focus on "injury-in-fact." Although the
common law forms of action dominated the legal process and jurisprudential
thought of the time, they did not exhaust it. n121 There were other matters of
"such a form that the judicial power is capable of acting on" them. n122
Characterized neither by the private rights model of the seven common law forms
of action nor by the "injury-in-fact" paradigm of modern standing doctrine,
these matters took forms astonishingly similar to the "standingless" public
action or "private attorney general" model that modern standing law is designed
Prior to the Revolution, other writs as well as equity practices brought
before the courts cases in which the plaintiff had no personal interest or
"injury-in-fact." Under the English practice, "standingless" suits against
illegal governmental action could be brought via the prerogative writs of
mandamus, prohibition, and certiorari issued by the King's Bench. n123 The
jurisdiction of King's Bench to superintend local governmental authorities by
means of these writs developed at the [*1397] close of the
seventeenth century. n124
The very availability of these writs as means to control governmental
action belies the private rights model; these procedural devices were designed
to restrain unlawful or abusive action by lower courts or public agencies,
especially actions that were beyond their jurisdiction. n125 These writs fit
easily within the jurisprudential thought of the time. n126 As Blackstone
explained it, mandamus and prohibition redressed the legal injuries of "refusal
or neglect of justice" n127 and "encroachment of jurisdiction," n128
respectively. Neither of these concepts entails a view in which only
individuals can be rights-holders. To the contrary, "neglect of justice" and
"encroachment of jurisdiction" are essentially communal concerns. n129 And, if
Blackstone's definitions of these "injuries" sound strange to modern ears, it
is because today's jurisprudence treats "injury-in-fact" in literalist terms.
But the common law usage of the term "injury" was plainly metaphoric. n130 The
term "injury" referred to "any infringement of the rights of another ... for
which an action lies at law." n131 Legal injuries were conceptualized in terms
of the experience of physical injury, but the former was not confused with the
latter. It is only in this sense that there could be a notion of damnum
absque injuria — that is, damage without cognizable legal injury.
Unlike the common law writs, the prerogative writs were not structured
in terms of the source-path-goal schema. Rather, the subject matter of the
prerogative writs was understood in terms of the part-whole schema: The King's
Bench acted on behalf of the King himself (the [*1398] whole of the
government) to superintend lower organs (the parts) rather as the head rules
the body. n132 Indeed, exactly this metaphor was used by the courts, which
described mandamus as "one of the flowers of the crown...." n133
The private rights model entails two source-path-goal schemata, one to
structure the subject matter of and another to structure the adjudicative
process invoked by the model. Similarly, the public rights model embodied in
the prerogative writs entailed a second use of the part-whole schema to
structure the adjudicative process. Any part (that is, citizen) could invoke
the power of the whole to secure observance of the law; any part could stand
for the whole, a legal metonymy. This model therefore required neither injury
nor "standing." At common law, these writs were available by suit of a
stranger. n134 The citizen-plaintiff's lack of a direct, personal interest did
not require that the court ignore the plaintiff's petition. Rather, because
these writs invoked the discretionary authority of the royal prerogative, the
court retained the power to adjust or withhold the remedy. n135
The English relator practice, which applied also in equity, provided a
formalized procedure for this part-whole metonymy. On issues of public rights
or public duties, where the English attorney general could sue on behalf of the
Crown, any person might seek one of the prerogative writs or bring a suit for
an injunction in the name of the attorney general. The litigant, or relator,
needed only to obtain the fiat or permission of the attorney general to use his
name; such permission was [*1399] granted as a matter of course.
Once permission was obtained, the relator prosecuted the action at his or her
own expense and without direction from the attorney general. n136 The attorney
general, however, was not a necessary party — that is, his fiat was not
needed — "where the interference with the public right is at the same time
an interference with some private right or is a breach of some statutory
provision for the protection of the plaintiff." n137 This latter rule
demonstrates that the relator practice clearly contemplated actions by those
without a direct stake in the controversy. Thus, as a practical and historical
matter, the relator's action extended the availability of judicial remedies to
persons not immediately affected by the challenged action by allowing any part
to invoke the name and the power of the whole and represent its interests
before the courts.
These English versions of the public rights model were familiar to the
Framers as "the business of the Colonial courts and the courts of
Westminster...." n138 Hayburn's Case n139 illustrates that, although the
specific procedural form of the relators' practice did not survive in America,
the acceptability of the part-whole schema of the public rights model did
In Hayburn's Case, Attorney General Randolph filed in the Supreme Court
a petition for a writ of mandamus to the federal circuit court for Pennsylvania
to enforce a congressional statute providing disability pensions to
Revolutionary War veterans. n140 The statute empowered the federal circuit
courts (which were the superior trial courts) to serve as commissions,
determining the amount of the pensions and certifying those determinations to
the secretary of war. The secretary of war, however, could disallow a pension
and refer the case to Congress. The circuit courts refused to accept these
The Attorney General first sought mandamus in his own behalf, ex
officio, to enforce the statutory scheme. He argued that section 35 of the
Judiciary Act of 1789 n141 authorized the attorney general to act in this
manner. n142 But, only a few months before the argument in Hayburn's Case,
Congress had rejected an amendment to the Process Act of 1792, n143 proposed by
Randolph, that would have explicitly authorized such actions. n144 A divided
Court denied the ex officio motion. n145 Rayburn's [*1400] response
was to seek mandamus on behalf of Hayburn, an interested party. n146
A majority of the members of the Court, while sitting in the circuit
courts, had expressed the view that the exercise of "judicial power"
contemplated by article III was inconsistent with a power to revise the
judgment reserved to either the legislature or an executive officer. n147
Hayburn's Case was rendered moot by an amendment to the pension statute; today
it stands for the principle expressed by the Justices while sitting in the
circuit courts below. But the only issue the Court actually considered in
Hayburn's Case was whether the attorney general had the power to sue ex
officio. The Court's deadlock on this issue eliminated the availability of the
English relator action: The relator could hardly invoke the "standing" of the
attorney general if the attorney general had none.
But Hayburn's Case did not affect the viability of adjudicatory models
premised on the part-whole schema — that is, it did not reflect a
rejection of the English practice treating such cases as justiciable. Rather,
the concern in Hayburn's Case was with the proper definition of the whole in a
constitutional system of separated powers. The English practice upon which
Randolph relied presupposed a sovereign with plenary power to enforce its laws
through its attorney general and its courts. It was this premise that the Court
did not accept. The executive was no longer the "head" of the body politic, and
the federal courts, unlike the King's Bench, could no longer assume that they
were free to speak for the whole. Rather, both organs were limited to the
exercise of powers given either by the Constitution or, within constitutional
limits, by the Congress. n148 Congress was the branch most representative of
the American sovereign — the people. It was, therefore, the closest
American equivalent to society's "head."
Different institutional premises, rather than doubts about
justiciability, led to the demise of the relator form of action in the federal
courts. Indeed, Hayburn's Case affirmed another adjudicatory model premised on
the part-whole schema. That is, if the Court had intended to require that
plaintiffs must have personal injuries in order to establish
[*1401] a "case or controversy," then it would have dismissed
Randolph's ex officio action at the outset for want of justiciability.
Similarly, it would have held the case unjusticiable even after Randolph
declared that he was suing on behalf of another.
The Court did not dismiss Randolph's actions for lack of justiciability
because it did not repudiate the essence of the public rights model. Today we
would see Randolph's actions as an instance of jus tertii — raising the
rights of third parties — or what I will call a representational model.
The Hayburn Court accepted Randolph's invocation of a representational model,
premised on a part-whole structure, that did not require allegation of
specific, personal injury: Randolph, a representative of the whole, was allowed
to proceed with the mandamus petition on behalf of Hayburn, a part. n149
Although Hayburn's Case undermined the institutional premises of the
relator action, American courts continued to entertain similar suits premised
on a part-whole schema. Those courts familiar with the English precedents
invoked them to allow citizens without particularized injury or interest to
question governmental authority. In State v. Justices of Middlesex, n150 the
New Jersey Supreme Court invoked the theory that jurisdiction lay to redress
what Blackstone called "neglect of justice" n151 to hold that certiorari was
available to challenge the conduct of an election. The court found support for
its conclusion in the writings of the English jurists, including Coke n152 and
Hawkins, who observed that "whatever crime is manifestly against the publick
good, it comes within the conusance of this court [the King's Bench], though it
do not directly injure any particular person...." n153 The New Jersey court
indicated that its discretionary power of certiorari "is sometimes exercised
before an injury actually accrues to any one, by issuing a mandamus...." n154
The Court justified this power in communitarian terms:
Where the injury is extensive, and involves any considerable portion
of the community, it is better to take up the business in gross.... The reason
is [that] the power is necessary for the preservation of the peace of the
community; — and with what colour can it be pretended that this court,
whose duty it emphatically is to take care that justice is done to
[*1402] every one, has no power to protect the interests, and
redress the wrongs of an entire county. n155
Although Middlesex was apparently reversed on appeal "before governor
and council," n156 its statement of the received common law concerning the
prerogative writs nevertheless reflected a great number of the American
mandamus decisions. In County Commissioners v. People ex rel. Metz, n157 the
Illinois Supreme Court rejected, in language similar to, but directly
contradicting, modern standing doctrine, n158 the argument that the plaintiff
had not shown sufficient interest to maintain the suit.
The question, who shall be the relator ... depends upon the object to be
attained by the writ. Where the remedy is resorted to for the purpose of
enforcing a private right, the person interested in having the right enforced,
must become the relator.... A stranger is not permitted officiously to
interfere, and sue out a mandamus in a matter of private concern. But where the
object is the enforcement of a public right, the People are regarded as the
real party, and the relator need not show that he has any legal interest in the
result. It is enough that he is interested, as a citizen, in having the laws
executed, and the right in question enforced.... No doubt is entertained of the
right of Metz to become the relator, and pursue this remedy, [sic] The object
of the suit is not a matter of individual interest, but of public concern. Any
citizen of the county, especially of the locality interested in having the
improvement prosecuted, could become the relator, and obtain the mandamus.
Other courts emphasized that citizens have a duty, as well as a right,
to take legal action when a public right is violated or a public grievance
Even without the formal procedural structure of the English relator
practice, these American decisions continued to employ the part-whole structure
of the common law mandamus action. Metz thus justified the invocation of the
court's jurisdiction by a citizen interested in having the laws executed on the
ground that there is a live controversy with the [*1403] people who
are regarded as the real party. n161 There was no requirement of injury-in-fact
or typicality as with the representation of the interests of a class in the
modern class action. Given the part-whole structure of the relationship between
the parties, I will refer to this original "standingless" model as a
constituent model. n162
State practice was far from uniform. By the middle of the nineteenth
century, many courts read the English cases as requiring the relator to allege
a private right. n163 These courts concluded that, in cases involving public
rights, only state officers such as the attorney general or district attorney
could sue. n164 Elsewhere, courts and litigants borrowed the form of the
relator action, n165 but altered the substance. n166 These cases reflect
certain legal and historical misconceptions, n167 and, [*1404] in
their period, were perceived by the United States Supreme Court as minority
Professor Jaffe documented the development of mandamus in the state
courts. n168 Yet the approval of the constituent model in the federal courts
has gone virtually unnoticed. In 1875, in Union Pacific Railroad v. Hall, n169
the United States Supreme Court explicitly endorsed Metz and declared: "There
is ... a decided preponderance of American authority in favor of the doctrine,
that private persons may move for a mandamus to enforce a public duty, not due
to the government as such...." n170
In Hall, the Supreme Court considered a petition for mandamus against
the federally chartered railroad brought by merchants seeking to require the
railroad to maintain a line over the Missouri River that ran from Iowa to
Nebraska. As the Court characterized it, these merchants "had no interest other
than such as belonged to others" and sought only to enforce "a duty to the
public generally." n171 The relevant statute provided only that the circuit
courts "shall have jurisdiction to hear and determine all cases of mandamus to
compel said Union Pacific Railroad Company to operate its road as required by
law." n172 Union Pacific challenged the sufficiency of the plaintiffs' interest
to maintain the petition. The Court did not discuss this challenge in
justiciability or constitutional terms. Rather, it first upheld Mr. Hall's
claim on the merits and then, at the close of the opinion, upheld his right as
a member of the public to petition for mandamus on a matter of public right.
Basing its judgment on English n173 and American precedent, [*1405]
the Court concluded that the petition was proper and affirmed the decision
below granting the writ.
With the exception of cases like Hall, the federal mandamus practice
remained underdeveloped. The reason is that the Court had systematically
rejected general jurisdiction over mandamus actions in the federal courts in a
series of three early nineteenth century cases. In Marbury v. Madison, n174 the
Court held that Congress could not vest mandamus jurisdiction in the Supreme
Court because it was an original action not provided for in article III. Ten
years later, in McIntire v. Wood, n175 the Court held that the All Writs Act
n176 was not intended to confer general mandamus powers on the federal courts,
but only to authorize mandamus in support of jurisdiction otherwise
These decisions were reaffirmed in Kendall v. United States ex rel.
Stokes. n177 There, the Court explained that the federal courts had neither
residual common law authority to issue the writ nor sovereign prerogative as in
England. n178 The federal courts, therefore, could only issue the writ when
Congress provided mandamus jurisdiction. But the Court did not question that
jurisdiction when Congress provided it; the Court merely invoked the syllogism
of the forms. "That the proceeding on a mandamus is a case within the meaning
of the act of congress, has been too often recognised in this court to require
any particular notice. It is an action or suit brought in a court of justice,
asserting a right; and is prosecuted according to the forms of judicial
proceedings." n179 The Court recognized jurisdiction over mandamus only in the
District of Columbia Circuit Court on the ground that the congressional statute
organizing the District adopted the common law of Maryland and, therefore,
adopted as well its common law jurisdiction over mandamus. n180
One might conclude that the Court engaged in this extended guerilla
warfare against mandamus jurisdiction precisely because it feared a general
judicial power to superintend government. But this argument undermines the
historical basis of modern standing doctrine. Had it been available, the
standing concept would have solved the Court's fears. It certainly would have
made Kendall an easy case. Kendall was a [*1406] case of private
right brought by four postmasters to compel the postmaster-general to pay their
salaries. n181 Instead of justifying the exercise of judicial power on the
theory that Kendall was a case of private rights, the Court engaged in a
lengthy discourse on mandamus under the new constitutional system and justified
the specific invocation of the judicial power in this mandamus case in a
roundabout way. n182 In Hall, on the other hand, the Court accepted
jurisdiction even though the plaintiff lacked a personal, private interest.
n183 The Court adjudicated the mandamus petition even though it was premised on
the part-whole schema of the constituent model; it did so without question
because Congress had explicitly conferred the jurisdiction.
Yet another form of public action thrived in America under the
Constitution. "Statutes providing for actions by a common informer, who himself
had no interest whatever in the controversy other than that given by statute,
had been in existence for hundreds of years in England, and in this country
ever since the foundation of our Government." n184 These were called "popular
actions because they were given to the people in general." n185
An English statute of 1424, for example, imposed a penalty on
customshouse officials who embezzled duties paid by merchants. n186 Any
informer, unrelated to the transaction, could sue to collect the trebled
penalties provided by the statute; the informer sued in his own behalf and on
behalf of the King. If successful, the informer kept a third of the judgment.
This device was used in the context of regulatory or criminal enforcement and
was also employed to enforce legal obligations on governmental officers that
did not otherwise give rise to private rights. In a later statute, Parliament
provided that an informer could collect a penalty of 500 pounds from an officer
who neglected to take the required oath of allegiance to the government. n187
The full extent of the popularity and use of informers' statutes in
America has not been documented previously. n188 The colonies and the states
employed informers' statutes in a wide variety of cases, including the
enforcement of regulatory statutes and morals legislation. n189 These
[*1407] statutes provided a common mechanism to regulate, by
judicial sanction, governmental officials where there was likely to be no
aggrieved party with a private cause of action. One of the earliest statutes
was adopted in New York in 1692. Under a statute "for the restraining and
punishing of Privateers and Pirates," all commissioned officers within the
colony were required to arrest or kill any pirates within their jurisdiction.
Any informer could enforce this duty by suit to collect a statutory penalty.
n190 An early New Hampshire statute required the officials in each town to
erect and maintain a pound for cattle; and it made the obligation enforceable
by the public at large through the medium of the informer's suit. n191
The Framers, in their roles as members of the first Congress, passed
legislation both creating and facilitating informers' suits. The first Congress
was in session only two months when it passed a customs-house informer statute;
it subsequently provided federal jurisdiction over informer suits in the
Judiciary Act of 1789. n192 These actions suggest that the Framers did not view
the "case or controversy" requirement of article III as limiting such "popular
actions" as informers' [*1408] suits. n193 The second Congress
implicitly approved the practice of informers' suits, providing rules for the
award of costs in cases brought by "any informer or plaintiff on a penal
statute to whose benefit the penalty or any part thereof if recovered is
directed by law...." n194 And, in 1794, the third Congress created informers'
suits to enforce its prohibitions against the slave trade. n195 Subsequent
Congresses, from 1834 n196 to 1986 n197 continued to use informers' suits for
the enforcement of rights accruing to the public at large. n198
The informer's suit employed multiple cognitive models. Informers' suits
like those provided for in New York and New Hampshire used the constituent
model with a simple part-whole structure as in mandamus: Any member of the body
politic with the relevant information was empowered to sue to vindicate the
policy choice made by the whole in passing the underlying regulatory law. Any
member of the community could enforce the collection of taxes, the provision of
police protection, or the maintenance of an animal pound once the community had
Other informers' suits like those federal actions regulating customs
practices, applied more complex models. These statutes presupposed an injury to
someone, who would also have a private cause of action modelled on the remedial
source-path-goal schema. These statutes nevertheless authorized suit by a
stranger with information, allowing the informer to act in a representational
capacity. Thus, these informers' actions were examples of a representational
model — they were structured [*1409] in terms of the
source-path-goal schema of an ordinary private cause of action n199 and a link
schema. One link was the informer's information about the injury to the actual
victim. n200 The other link was provided by the part-whole schema: One part
could speak for the other since each was a constituent of one whole.
Suits by those without personal injury who were acting as
representatives of others were not viewed as raising constitutional problems
under article III. In Adams, qui tam, v. Woods, n201 Chief Justice Marshall
expressed the view that informers' suits were common and ordinary: "Almost
every fine or forfeiture under a penal statute, may be recovered by an action
of debt, as well as by information...." n202 The Court never questioned the
plaintiffs' "standing" in three subsequent informers' actions that it decided
in 1885, 1905, and 1943. n203 On the basis of these cases, Justice Harlan,
dissenting in Flast v. Cohen, conceded that suits brought by nontraditional
plaintiffs — that is, plaintiffs without injury-in-fact — were not
barred by article III. n204
B. Cognitive Structure, Prototype Effects, and the Public Rights
The public rights model coexisted comfortably with the conceptual system
of nineteenth century legal thought. It was in many ways traditional in its
structure, even though premised on alternative schemata. Because the public
rights model overlapped structurally with the private rights model, however, it
seemed like a variant of the latter model. As such, it was vulnerable to the
extreme prototype effects discussed in Section II above.
In his classic article on modern public law litigation, n205 Professor
Chayes described the traditional, private rights model in terms of five
"defining features." He described traditional litigation as bipolar,
retrospective, self-contained, party-initiated and controlled, and
characterized by an approach that treats right and remedy as interdependent.
n206 In contrast, Chayes described the emerging public [*1410] law
model as flexible and sprawling in shape, predictive in its fact-finding and
prospective in its approach to remedy, judicially managed and activist rather
than party controlled, and characterized by a dispute over the operation of
public policy rather than over private right. n207
In these aspects, at least, the public rights models of mandamus and of
the informer's action that we have considered had more in common with the
traditional version of the private rights model than with the emerging public
law model described by Chayes. These nineteenth century public rights models
were bipolar, initiated by a single citizen against an officer of the
government. The litigation was often retrospective; in any event, it was
well-bounded by a specific duty or omission and its subject matter concerned
quite precise "consequences for the legal relations of the parties." n208 The
suit was entirely party-initiated and controlled. Right and remedy were
interdependent, controlled no less by the writ system than were the common law
forms of action. n209 The lawsuit was only partially self-contained in the
sense employed by Chayes: The entry of judgment ended the court's involvement,
but its impact was not confined to the particular litigant who prosecuted the
action. Rather, it affected the "real party in interest": the entire community.
These similarities between the original public and private rights models
reflect a common experiential grounding by means of the conventional metaphor
rational argument is war. n211 In our culture, we conceptualize rational
arguments in terms of basic physical combat: "There is still a position to be
established and defended, you can win or lose, you have an opponent whose
position you attack and try to destroy and whose argument you try to shoot
down. If you are completely successful, you can wipe him out." n212 This same
set of [*1411] conceptualizations governs in legal matters. n213
Thus, Professor Chayes described traditional litigation as "a contest between
two individuals or at least two unitary interests, diametrically opposed, to be
decided on a winner-take-all-basis." n214 Here we have a reference to the array
of opposing forces in battle and the principle of "to the victor belong the
spoils" that have characterized warfare throughout much of human history.
Our use of the rational argument is war metaphor to organize our models
of litigation is not arbitrary or accidental, but rather is motivated by human
experience. Physical combat and rational argument are both means of obtaining
desired ends such as food, property, status, and control. Until the development
of sophisticated weaponry in modern times, even organized combat was inherently
hand-to-hand and one-on-one. The bipolar, individualized nature of the private
rights model thus reflects directly the historical experience of combat.
The public rights models of the nineteenth century retained this bipolar
structure by employing a representational model, a metonymy premised on the
part-whole schema and motivated by the battle metaphor. Opposing forces
sometimes settle their differences through the combat of champions subject to a
"winner-take-all" agreement. n215 Representation of the whole (the army) by the
part (the champion) avoided greater bloodshed. In an even more civilized
version, the opposing forces sent emissaries to avoid fighting via a diplomacy
in which reason replaced physical combat. The constituent model of mandamus
mimicked this model in the legal sphere. In cases like Hall or Metz, a single
member of the public adjudicated the concerns of many. This model was an
advance over the inefficient and disruptive effects of a multiplicity of
private suits. The role of the courts was to coordinate and vindicate the
greater interests of the whole, n216 by employing the [*1412]
part-whole schema of mandamus.
The rational argument is war metaphor also accounts for the radical
prototype effect in our thinking about justiciability. Warfare is a natural
source domain for the source-path-goal metaphor. Whatever the purpose of the
fight, it involves advancing on the enemy's position and trying to take it.
Structuring rational argument metaphorically as we understand battle, we employ
a source-path-goal schema in our conceptualization of argument. Adjudication
involves rational argument and is one kind of human purposive endeavors. It is,
therefore, naturally conceptualized in terms of a source-path-goal schema.
Adjudicatory models premised on a part-whole schema, like mandamus, are
ultimately crowded out of our concept of justiciable controversies.
As such, adjudication is a radial concept. All of its submodels share
the core source-path-goal schemata of arguments and purposes. The causal and
remedial source-path-goal metaphors of the private rights model and the
part-whole and link metaphors of the public rights models radiate from this
core. The private rights model seems, therefore, to be more central to the
concept of adjudication — a coherence prototype effect. Thus, the remedial
source-path-goal metaphor of the private rights model is seen as the primary
case, or prototype, of adjudication. In comparison, the public rights model
doesn't quite seem to fit; it seems "of a peculiar and eccentrical nature."
As a variant of this prototypical structure, public rights litigation
was an intermediate category between private law disputes, on the one hand, and
politics, on the other. This was reflected in the substantive, procedural, and
jurisdictional aspects of public rights law. Substantively, the public rights
law occupied an intermediate status between the realm of inviolable vested
rights and political discretion. It concerned affairs of the whole n218 such as
public roads, n219 navigable rivers, n220 [*1413] railroads, n221
morals legislation, n222 and the performance of public officers. n223 But it
included only those matters that could be governed by legal reason and the
constraints of the "right and remedy" formulation. Mandamus thus excluded from
its purview public matters that involved discretion, n224 leaving such matters
to the political process. n225 Moreover, public rights matters were more
vulnerable than were private suits to the intervention of politics: Legitimate
concerted actions of the whole (subsequent legislation, for example) could
defease the public right asserted by the litigant, even during the course of
the lawsuit. n226
Procedurally, the models of access for raising claims of public right
allowed individuals to command the attention of the law, as in the private
rights model. But, as in the political sphere, these models required no
personalized injury peculiar to the plaintiff. Jurisdictionally, the authority
to consider matters of public right was understood neither as inherently
judicial nor as nonjusticiable. Rather, the question of justiciability was left
to the discretion of Congress, as in mandamus cases like Kendall and Hall. n227
The public rights concept filled an important social and legal need in
the eighteenth and early nineteenth centuries. During this period, the
Anglo-American governmental structures had yet to develop the large scale,
bureaucratic organizations that characterize our modern governments. Thus, in
England, most criminal prosecutions were brought by the victims themselves, in
their own name and in the name [*1414] of the Crown. n228
Similarly, local governmental action was often the bailiwick of a
quasi-judicial board of commissioners, as in England, n229 or the local circuit
court, as in the Colonies. n230 The public rights model provided a vehicle for
direct participation by the citizenry that was not available in any other
Part of the explanation of the demise of the public rights model lies in
its declining social and political utility in the mid-nineteenth century. As
public agencies such as district and county attorneys were established, the
need decreased for private attorneys general. This was reflected in the 1840s
and '50s by those courts which held that only the public officers could bring
public rights suits. n231 The increased desuetude of the public rights model
resulting from the gradual expansion of these public agencies, coupled with the
cognitive eclipse of the model as a result of the extreme prototype effects
described above, led to the almost total loss of the public rights model from
modern legal awareness.
The intermediate legal status of the public rights model explains three
common anachronisms in current legal scholarship that are a function both of
our reading of nineteenth century material through the lens of twentieth
century concepts n232 and of the phenomenon of prototype effects. The first
anachronism is the now conventional reading of Murray's Lessee v. Hoboken Land
Improvement Co. n233 as a discussion of the power of Congress to assign certain
matters — designated "public rights" — to article I tribunals.
[*1415] When viewed in light of the new historical evidence
presented above, however, it becomes clear that Murray's Lessee explicates
instead the intermediate status of the public rights model. On the page before
the passage that is cited as referring to article I Tribunals, Justice Curtis
[t]hough, generally, both public and private wrongs are redressed
through judicial action, there are more summary extrajudicial remedies for
both. An instance of extrajudicial redress of a private wrong is, the recapture
of goods by their lawful owner; of a public wrong, by a private person, is the
abatement of a public nuisance; and the recovery of public dues by a summary
process of distress, issued by some public officer authorized by law, is an
instance of redress of a particular kind of public wrong, by the act of the
public through its authorized agents. n235
Murray's Lessee distinguishes between personalized private injuries and
matters affecting the whole (such as public nuisance and public dues). The
passage in Murray's Lessee concerning Congress' discretionary power to assign
matters affecting the Whole to the courts is in its historical context an
expression, congruent with the Court's acceptance of congressionally authorized
mandamus actions in Kendall and Hall, of the intermediate jurisdictional status
of the public rights model. n236
[*1416] The second anachronism is the attribution of the
private rights model of constitutional adjudication to Marbury v. Madison. n237
Marbury was a mandamus case and, thus, a manifestation of the public rights
model. But this case arose in the context of a claim of private right, which
perhaps makes it the most celebrated but misunderstood illustration of the
intermediate legal position of public rights law. Much of the legal discussion
in Marbury concerned the power of the courts to require compliance with the law
on the part of executive officers and the scope of mandamus as an instrument
for that purpose. n238 The significance of the Court's ruling in its own time
was its assertion of mandamus power over senior officers of the government.
n239 Its novelty lay in suggesting that Congress could only vest that power in
the lower courts n240 and not in the Supreme Court, which was the closest
American equivalent to King's Bench.
Marbury's assertion of the power of judicial review followed naturally
from the affirmation of the public rights model of mandamus power over
executive officials. Marbury's apparent focus on individual injury as a
condition precedent to the court's adjudication n241 was a settled part of the
law of mandamus in cases of private right, as we saw in Metz, and not a sine
qua non of all constitutional cases. n242 The modern perspective on Marbury as
an instance of the prototypical private rights model, rather than an instance
of the intermediate public rights model, is a radical prototype effect.
The intermediate legal status of the public rights model and the
phenomenon of prototype effects also help explain a third historical
misconception common to most legal scholarship in this area. Traditional
[*1417] analyses describe the issues raised by nineteenth century
citizen-government relations as concerning intrusions upon citizens' autonomy
— a sphere marked by the common law protections of person and property. In
this view, the private rights model was sufficient to mediate and accommodate
these concerns, but not the twentieth century concerns about governmental
denial of expected entitlements. n243 Modern tensions in standing law have been
attributed, incorrectly, to these ostensible shifts in the focus of
citizen-government relations from concerns about autonomy to issues of
But the problems of the nineteenth century were not so purely "Lockean."
n245 They also concerned entitlements no less central to the citizen-government
relationship than welfare benefits or access to government contracts are today.
In a geographically and commercially expanding nineteenth century America, the
building of roads and the maintenance of navigable waterways were matters of
public concern. Metz and Hall were public rights cases about problems arising
from these entitlements. The public rights model could have provided a
nineteenth century paradigm for modern litigation about entitlements. It
didn't, in part because it had been eclipsed by the private law prototype and
in part because of the systematic attempt to dismember the public rights model
from 1900 onward.
IV. THE RISE OF STANDING
Metaphor creates a new reality from which the original appears to be
A lot happened to "standing" between the time of John Marshall and Felix
Frankfurter. The term started out as a nonspecific metaphor, gained currency in
equity, and only later became a constitutional doctrine. It will require
Holmesian (Sherlock, not Oliver Wendell) deduction to reconstruct that story,
and it will prove anything but elementary.
This section is divided into five parts. The first traces the usages of
the term "standing" from Justice Marshall to Justice Brandeis. We will see the
ontological effect of the metaphor in equity, as it exerted pressure on judges
and lawyers to see what had been questions of substance and of remedy as a
jurisdictional question of access to a court of equity.
The second subsection traces the history of the concept of jus tertii.
Originally conceived as a requirement of the Supreme Court's jurisdictional
statute, it became a tenet of individualism that eviscerated the
[*1418] representational models premised on link schemata such as
the part-whole metaphor for society. Its primary elaboration came in equity,
with its emphasis on the individual's irreparable injury as the sine qua non
for the exercise of the court's power.
The third subsection turns to the viability of another version of the
representational model during this period. It briefly traces the doctrinal
battle over the capacity of a state (as the whole) to vindicate in the federal
courts the interests of its citizens (its parts). We will see the Court still
vacillating between the private and the public rights models in this area as
late as the 1970s.
The fourth subsection takes up the equity versions of the constituent
model: shareholder derivative suits and taxpayer actions. We will see Justice
Brandeis' largely unsuccessful efforts to bar their use. We will see, too, his
near capitulation in 1937. From those ashes we will see Justice Frankfurter
single-handedly raise the phoenix of standing. The final subsection sketches
the historical context which suggests the motivation of these determined
A. Substance, Remedy, and the Ontology of "Standing"
The term "standing" was in use in Justice Marshall's time; it was first
used as a metaphor to describe the legal relationship of parties. In
Lidderdale's Executors v. Executor of Robinson, n247 a case involving the
priority of creditors, the Court held that sureties "succeed to the legal
standing of their principal...." n248 In Galloway v. Finley, n249 an equity
action for the rescission of a contract to purchase land, the Court held that a
buyer who learned that the seller had bad title "could not be permitted to
avail himself of it whilst standing in the relation of a purchaser, to defeat
the agreement...." n250
The Court eventually used the term "standing" to describe a party's
status in the litigation. This usage took two forms, both unrelated to the
modern standing doctrine. The Court used the metaphor most [*1419]
commonly to indicate that a party had no claim on the merits, as it did in a
series of cases concerning land claims in the Louisiana Purchase by those with
preexisting Spanish title. n251 Congress had required that title be confirmed
by a federal commission. Many of the original settlers failed to obtain such
confirmation, and the Court held against them expressing its holding in the
language of "standing." In Les Bois v. Bramell, for example, the court rejected
plaintiff's unconfirmed Spanish title because "her claim had no standing in a
court of equity or of law...." n252
The Court used the term "standing" to refer to the claimant, not the
claim, in its rejection of the claim on the merits in Ritchie v. Franklin
County. n253 Mr. Ritchie brought an equity action as a taxpayer to establish
that bonds issued by the county court pursuant to state statutory authority
were illegal under the state constitution. He sued the county court and the
holders of the bonds. The case came to the Court on plaintiff's exceptions to
the answer. The Court upheld the validity of the bonds, n254 and concluded that
"as the defendants claim to be innocent holders, ... the complainant has no
standing in a court of equity." n255
Although in both Les Bois and Ritchie the Court used the term "standing"
to indicate a loss of the suit on the merits, the two cases differ
substantially when analyzed according to the modern doctrine of the same name.
The private rights model characterized Les Bois; the plaintiff had clearly
suffered particularized injury redressable by a common law court. By contrast,
the constituent public rights model applied to Ritchie; Mr. Ritchie had
suffered no demonstrable injury and he shared his grievances with all other
taxpayers of the county. In neither case did the Court engage in an analysis
that remotely resembled modern article III standing. In each case, the Court's
explicit consideration of "standing" was an inquiry into the merits. n256
[*1420] The Court also used the term "standing" to describe
those parties identified by article III as supporting party-based subject
matter jurisdiction. In Livingston v. Story, the Court dismissed a diversity
case because the plaintiff had not properly pled the parties' citizenship for
purposes of diversity jurisdiction. Justice Baldwin argued in dissent that
"like all others material to the plaintiff's standing in court, [the plaintiff]
was bound to prove it when called on by an answer, which did not admit, or put
it in issue by a denial." n257 In Georgia v. Stanton, n258 the Court used the
metaphor to characterize the decision in Cherokee Nation v. Georgia n259 "that
the Cherokee Nation could not be regarded as a foreign nation within the
Judiciary Act; and, that, therefore, they had no standing in court." n260
The term "standing" had a third nineteenth century usage that first
appeared in equity cases concerning public nuisance. In Georgetown v.
Alexandria Canal Co., n261 the city of Georgetown sought an injunction in
federal court to stop the construction of an aqueduct over the Potomac River
that threatened to obstruct both the channel and the harbor. The Court held
that the case was not proper for a court of equity. It expressed this in the
language of a familiar battle metaphor: "[T]he plaintiff cannot maintain a
stand in a court of equity...." n262
Doctrinally, Georgetown had nothing to do with article III; the case was
solely and explicitly an artifact of the historic jurisdictional fight between
law and equity. The Court first discussed the exercise of criminal jurisdiction
over public nuisances by the law courts. n263 It then traced the tenuous
exercise of equity jurisdiction over public nuisances, which "had lain dormant
for a century and a half ... from Charles I. [*1421] down to the
year 1795." n264 The compromise in this jurisdictional battle between law and
equity was a doctrine that required special, private injury as a prerequisite
for an injunction against a public nuisance. n265 The Court accordingly held
that the city was not a proper plaintiff.
The significance of Georgetown in the development of standing is not
doctrinal but cognitive. Toward the end of its opinion, the Court admonished
The appellants seem to have proceeded on the idea, that it appertained
to them, as the corporate authority in Georgetown, to take care of and protect
the interests of the citizens.... But ... the persons who, by name, bring the
suit, and constitute the parties on the record, [must] have themselves an
interest in the subject-matter.... n266
Though this passage appears in a case that was solely about equity
doctrines, its language foreshadows that of the later constitutional doctrine
of standing. For, Georgetown and its progeny rejected for equity the kind of
representational model premised on a part-whole schema that characterized
Hayburn's Case and mandamus. n267 The invocation of the representational model
by the city was consistent with the notion of a municipal corporation; the term
is itself a part-whole metaphor for the human body. n268 The Court, however,
rejected just this assertion by the appellants of the right to sue as "the
corporate authority in Georgetown." This rejection of the representational
model premised on a part-whole schema was not final, of course; the Court
vacillated on this point both in Hall n269 and in later equity cases. The most
notable of [*1422] these was In re Debs. n270
When, in Debs, the Court considered the "standing" of the federal
government to obtain an injunction to stop the Pullman strike of 1894, it did
not consider an article III, "case or controversy" question of standing.
Rather, it asked whether the government had acted within its delegated
authority and whether, "[i]f authority exists, as authority in governmental
affairs implies both power and duty, has a court of equity jurisdiction to
issue an injunction in aid of the performance of such duty." n271 The Court
concluded that the appeal by the government to a court of equity was
appropriate on two grounds. First, the Court invoked a private rights model for
the government's position: "It is said that equity only interferes for the
protection of property, and that the government has no property interest. A
sufficient reply is that the United States have a property in the mails, the
protection of which was one of the purposes of this bill." n272 But the Court
did not rest there; it applied the public rights model directly — invoking
the government's obligation "to promote the interest of all, and to prevent the
wrongdoing of one resulting in injury to the general welfare," — as a
"sufficient" ground to confer upon the government "a standing in court."
In these nineteenth century "standing" cases, the central inquiry was
whether the litigant asserted the kind of interest or right for which equity
would provide a remedy. In Ritchie, the litigant had asserted a claim that
equity would not enforce against an innocent purchaser. Similarly, in Debs, the
Court considered what kind of rights, both public and private, were enforceable
by equity. n274 Despite the use, by the Court in Georgetown, of a variant of
"standing" in connection with its insistence on a private rights model, the
Debs Court reaffirmed the public rights model in upholding the "standing" of
the federal government.
The significance of Debs to modern standing doctrine was purely
linguistic. To appreciate this, it is necessary to understand how wide was the
gap between the original understanding of "standing" — with its grounding
in substantive considerations of equitable rights and remedies — and the
later imposed requirement of "injury-in-fact." This gap lasted well past
Frothingham; it wasn't until much later that the term "standing" was understood
as expressing a purely procedural concept.
The Chicago Junction Case, n275 decided a year after Frothingham,
illustrates the gap between the original substantive meaning of "standing" and
its later procedural usage. There, competitor railroads brought a
[*1423] suit in equity to set aside a sale approved by the
Interstate Commerce Commission. The defendants claimed that the plaintiffs had
"not the legal interest necessary to entitle them to challenge the order." n276
Writing for the Court, Justice Brandeis first observed that the plaintiffs had
"a vital interest.... The diversion of traffic has already subjected the
plaintiffs to irreparable injury ... exceed[ing] $ 10,000,000." n277 That
assertion did not address the relevant question because what the litigant
needed for "standing" was not literal injury, but a redressable right or legal
injury. The Court found that right not in "the incident of more effective
competition," but rather in the statutory "injury inflicted by denying to the
plaintiffs equality of treatment." n278
Justice Sutherland dissented on the ground that the railroads had no
"remediable interest." He phrased this argument in terms of "standing." n279
But he did not invoke an article III doctrine; he relied on general principles.
n280 "What constitutes a legal or equitable right, interference with which may
give rise to an action? may be tested; and the determination of that question
must still rest upon general principles of jurisprudence." n281
[*1424] As late as Ashwander, n282 Justice Brandeis shared
Justice Sutherland's doctrinal premises. In his famous concurrence in
Ashwander, Justice Brandeis opined that the plaintiffs did not have standing,
stating that "[t]he obstacle is not procedural. It inheres in the substantive
law, in well settled rules of equity, and in the practice in cases involving
the constitutionality of legislation." n283 Justice Brandeis derived none of
these three obstacles to "standing" from article III. n284 Even his invocation
of the constitutional practice was prefaced with the observation that the rules
developed by the Court were "for its own governance in the cases confessedly
within its jurisdiction...." n285
It is this understanding of "standing" as substantive that illuminates
the significance of cases like Debs: Debs illustrates the ontological effect of
the metaphor. In the nineteenth century, the phrase "a standing in court" n286
was used to refer to the party's ability to obtain equitable remedies from the
courts. This phrase suggested that standing was a jurisdictional question, as
in Livingston or Cherokee Nation. That interpretation was consonant with both
the historical view of equity as a separate jurisdiction (as it had been before
the merger of law and equity) and the notion that jurisdiction in equity was
founded on the availability of certain remedies.
But the discussion of concepts of rights and entitlement to equitable
remedies in jurisdictional terminology was understood by the most eminent legal
scholars of the day as an inaccuracy needing correction. John Pomeroy decried
the phenomenon in 1892: "[T]he 'equity jurisdiction' [*1425] is
constantly confounded with the right of the plaintiff to maintain his suit...."
n287 In 1926, in State Grange v. Benton, Justice Holmes admonished that:
"Courts sometimes say that there is no jurisdiction in equity when they mean
only that equity ought not to give the relief asked. In a strict sense the
Court in this case had jurisdiction." n288 At the very time of Frothingham and
Fairchild, the Supreme Court was trying to disentangle "standing" from notions
of jurisdiction. In 1926, the Court wrote: "Whether a plaintiff seeking such
[equitable] relief has the requisite standing is a question going to the
merits, and its determination is an exercise of juridiction. If it be resolved
against him, the appropriate decree is a dismissal for want of merits, not for
want of jurisdiction." n289
Nevertheless, the ontological effect of the metaphor was overpowering:
"A standing in court" sounds like a question of jurisdiction because standing
up is a prerequisite to being heard in court. Justice Holmes, Pomeroy, and the
Supreme Court did battle with the metaphor, but lost. "Standing" became a
question of jurisdiction in the more fundamental sense of justiciability under
B. Jus Tertii and the Elaboration of the Individualist Model
The analytic antecedents of the modern doctrine of standing can be
traced to the cases that we now see as presenting problems of jus tertii: when
a litigant seeks to invoke rights "belonging" to a third party. n290 The
connection between the jus tertii cases and their modern doctrinal descendent
lies in their common conceptualization by means of the individualistic metaphor
of "standing." If a litigant can assert only his or her own "personal" rights,
then that person cannot assert the rights of another (jus tertii) and that
person cannot assert the rights of the group (standing) unless he or she
actually has suffered personal injury and the rights asserted are only
coincidentally those of the group.
Viewed through this lens, both jus tertii and modern standing cases
concern situations in which the court dismisses the litigant's claim because he
or she is the wrong person to assert it. But these two types of cases relied on
different doctrines. The jus tertii cases were not premised on article III
minima derived from the "case or controversy" requirement as is the modern
understanding of standing. As Justice Brandeis explained in Ashwander, jus
tertii was a rule the Court applied in [*1426] "cases confessedly
within its jurisdiction...." n291 None of the jus tertii plaintiffs lacked the
requisite relationship to the court now delineated by the modern doctrine of
standing. Each plaintiff had a sufficient interest to make the dispute a
"case." Each had suffered an injury-in-fact; each was affected in a
particularized way by the private or public actions about which he or she
complained; and, had the courts adjudicated the claim, each predicament would
have been redressed by the relief sought.
Equity doctrine provided the link that allowed jus tertii cases to
become transformed into the modern standing doctrine with its focus on injury
and direct causation. To document this link, I will demonstrate that the jus
tertii doctrine itself evolved from two separate lines of cases.
The first line of cases evolved from an 1809 decision by Chief Justice
Marshall in Owings v. Norwood's Lessee. n292 Mr. Owings, the defendant in an
ejectment action, had come into possession of the property after an attachment
and unexecuted judgment of condemnation had been obtained by a creditor of the
mortgagee. n293 Mr. Owings' defense to the plaintiff's claim of title was that
superior title had passed to the mortgagee, an English merchant named Mr.
Scarth. The Maryland courts held that Mr. Scarth's interest had been
confiscated by the state in 1780. Mr. Owings argued that the confiscation in
fact occurred in 1794 and, therefore, was invalid under the provisions of the
treaty of peace with England. The Court held that it had no jurisdiction
because "[t]he 25th section of the judiciary act must be restrained by the
constitution, the words of which are, 'all cases arising under treaties.' The
plaintiff in error does not contend that his right grows out of the treaty."
The next day, plaintiff's counsel addressed the Court, stating his
understanding of the basis of the Court's decision. He suggested that the Court
had reached its decision by interpreting its power to review state court
judgments "where the party himself did not claim title under a treaty." Chief
Justice Marshall respondend that plaintiff's counsel "had misunderstood the
opinion of the court, in that respect. It was not that this court had no
jurisdiction if the treaty were drawn in question [*1427]
incidentally." n295 Rather, Mr. Owings could not invoke the Court's appellate
jurisdiction because his was not a case presenting a federal question. n296 Mr.
Owings claimed no title under the Englishman Scarth. Nothing in the case
concerned the rights or treatment of an English national, the subject to which
the treaty's provisions were addressed. The invocation of Mr. Scarth's title
was relevant only as a matter of state property law to defeat the plaintiff's
ejectment claim. n297 That question could be invoked by Mr. Owings in the
Maryland courts. n298 But, the purposes of the treaty protections — that
is, the federal interests n299 — were absent; the case was wholly
dependent on state law. n300
In its own time, however, Owings was understood as construing section 25
of the Judiciary Act of 1789 as limiting the Supreme Court's appellate
jurisdiction to cases in which the plaintiff-in-error claimed or set up a title
of his or her own derived from the Constitution, a treaty, or a law of the
United States. n301 This was, in part, because Chief Justice Marshall's opinion
appeared to be concerned with the definition and ownership of rights. n302 It
is not surprising that this notion of jus tertii was understood as statutory
rather than constitutional. For the contemporaneous informer, relator and
mandamus cases taught that article III did not necessarily bar a litigant from
raising another's rights. If [*1428] there was a rule of law that
did so, it would have to have been the statute. The Court continued to
interpret its jurisdictional statute as the source of the principle of jus
tertii well into the twentieth century. n303
The generalized notion of jus tertii that we are familiar with today
developed instead from an entirely different source: state mandamus cases as
interpreted by Dean Thomas Cooley. n304 Precisely because mandamus practice
allowed strangers to litigate constitutional claims of governmental excess,
those queasy about the exercise of the strong medicine of judicial review
questioned whether any public spirited citizen should be able to invoke it.
This notion of jus tertii was derived from the distinction between
unconstitutional statutes as void or merely voidable. n305 In Marbury's
conceptual system, unconstitutional statutes were conceived of as void because
beyond the legislative power in the first place. n306 Marbury's conception was
soon questioned in the state courts, where the practice of judicial review was
recognized, but not embraced so unqualifiedly. In re Wellington, n307 the
Massachusetts court propounded its own, premature Brandeisian catalogue of
devices for avoiding the invalidation of state statutes on constitutional
grounds. n308 Amongst these was the recognition that when such an act is
alleged to be void, on the ground that it exceeds the just limits of
legislative power, and thus injuriously affects the rights of others, it is to
be deemed void only in respect to those particulars, and as against those
persons, whose rights are thus affected. n309
Wellington was a classic public rights case. Joshua Wellington and his
co-plaintiffs sought, by means of mandamus, to compel county commissioners "to
consider and determine whether it be of common convenience and necessity," that
a road be built across a corner of Cambridge [*1429] common. n310
On the merits, the petitioners argued that the state statute establishing the
commons was unconstitutional because it failed adequately to provide for
compensation to the original property owners, all of whom were third parties.
The court recited the limitation noted above, but ruled against the third party
claim on the merits. n311
Only at the close of the opinion did the court consider "whether the
petitioners in the present case stand in such a relation to the cause and the
subject matter, as to warrant them in applying to this Court for a writ of
mandamus." n312 It suggested that "it may perhaps be urged with some force,
that petitioners so situated are parties and as such have an interest in the
final and correct determination of the cause...." n313 Ultimately, the court
concluded that it need not reach the "standing" question because it disposed of
the case on the merits of petitioners' third party claim. n314
But Dean Thomas Cooley adopted Wellington's notion that statutes were
only unconstitutional as applied to specific people. He discussed it in his
influential treatise on constitutional limitations on state governments, n315 a
major source of late nineteenth century legal views on individualism. n316
Cooley interpreted Wellington as a case about the individualistic basis of
rights that stated a general rule of jus tertii: "Nor will a court listen to an
objection made to the constitutionality of an act by a party whose rights it
does not affect, and who has therefore no interest in defeating it." n317
Some state courts applied Cooley's analysis n318, but the Supreme Court
was initially less receptive. n319 Thus, although the Court asked
[*1430] the rhetorical question in Supervisors v. Stanley, n320
— "What legal interest has he in a question which only affects others?"
n321 — it did not decide the case by invoking Cooley's (or Owings', for
that matter) concept of jus tertii. Rather, the Court concluded that the New
York statute "was voidable but not void." n322 It found that the provisions of
the New York statute were severable, n323 and could be applied in cases in
which no conflict with the federal statute existed. n324
The watershed came in three cases at the turn of the century. In the
first, Clark v. Kansas City, n325 the Court cited Cooley and Stanley as
illustrations of the proposition that "a court will not listen to an objection
made to the Constitutionality of an act by a party whose rights it does not
affect and who has therefore no interest in defeating it." n326 In Clark, a
railroad challenged a state statute exempting agricultural land from municipal
annexation. It argued that the statute discriminated between the owners of
agricultural and other types of land, as well as among owners of various
classes of agricultural land, in violation of the equal protection clause. n327
Because the railroad owned no agricultural land, the Court only considered the
alleged discrimination between owners of agricultural and nonagricultural land,
but would not consider discrimination among owners of various classes of
agricultural land. The Court applied the source-path-goal metaphor of the
private rights model; because the railroad had suffered no legal injury —
that is, no source for the remedial request the railroad — had no cause of
[*1431] action. n328
The second case, Tyler v. Judges of the Court of Registration, n329 is
the most significant of the three: It is one of two opinions authored by
Justice Brown that form the basis of the modern standing doctrine; n330 it was
the first opinion to combine the statutory and generalized versions of jus
tertii; n331 and, most importantly, it was a prerogative writ case, thus
challenging the viability of the representational model on its home turf.
Tyler was a challenge to the Massachusetts Land Registration Act of
1898, n332 which provided for an in rem proceeding through which an owner could
settle title as against all potential claimants. Mr. Tyler was the owner of a
lot adjoining one that was about to be registered; he was concerned that the
registration, specifying the boundaries of the lot, would prejudice a dispute
over the boundary between that land and his. He sought a writ of prohibition to
stop the registration court from proceeding. He argued that the registration
statute was unconstitutional because it failed to provide notice to absent
third parties who might have an interest in the land to be registered. The
Court declined review because Mr. Tyler clearly had notice, and therefore did
not have "the requisite interest to draw in question the constitutionality of
this act...." n333 Mr. Tyler could not invoke the concerns of others, who had
to complain for themselves. n334
The four dissenters were astonished by the Court's ruling. n335 And
[*1432] they had good reason to be: Massachusetts Supreme Court
Chief Justice Holmes had authored the opinion below and had not questioned Mr.
Tyler's capacity to bring the action. n336 Furthermore, in Massachusetts in
1900, as at the time of the Framers, a writ of prohibition of the type sought
in Tyler was available at the behest of a stranger, let alone a petitioner with
an injury of his or her own. n337
But Justice Brown and the majority opined:
The prime object of all litigation is to establish a right asserted by
the plaintiff or to sustain a defence set up by the party pursued. Save in a
few instances where, by statute or the settled practice of the courts, the
plaintiff is permitted to sue for the benefit of another, he is bound to show
an interest in the suit personal to himself, and even in a proceeding which he
prosecutes for the benefit of the public, as, for example, in cases of
nuisance, he must generally aver an injury peculiar to himself, as
distinguished from the great body of his fellow citizens. n338
The Court failed to explain in doctrinal terms why Mr. Tyler's action
did not provide a proper "instance where, by ... the settled practice ...,
the plaintiff is permitted to sue for the benefit of another." The Court also
ignored the fact that Mr. Tyler had alleged an injury peculiar to himself: an
adjudication by the registration court of the boundaries of the adjoining
property that would, at least de facto, alter his rights. Finally, the opinion
invoked the law of nuisance as its paradigm, an analogy underlining the degree
to which the notion of "standing" was bounded by the relevant substantive law
and, thus, undermining the Courts generalized assertion that a plaintiff could
not sue on behalf of others.
What Justice Brown's opinion did instead was neatly to sever the
plaintiff's connection to the absent third parties by rejecting the sufficiency
of the part-whole metaphor for society: Mr. Tyler needed to make a personalized
legal claim "as distinguished from the great body of his fellow citizens." n339
Doctrinally, the opinion invoked Owings and its progeny n340 — as well as
aspects of justiciability such as mootness, ripeness, and the ban on advisory
opinions. n341 It did not raise the question [*1433] we now view as
central to standing: the degree of injury a litigant must suffer to establish
his or her entitlement to use the judicial process. To the contrary, Justice
Brown acknowledged that Mr. Tyler was free to intervene in the registration
process and pursue his claim in that case all the way to the United States
Supreme Court. n342
Thus, Tyler was not a case of article III standing in the modern sense.
But, it was an important step toward the modern doctrine because it
specifically rejected application of the representational model with the writ
of prohibition. The final link, transforming a doctrine preventing injured
parties from invoking third party rights into a doctrine requiring direct
injury, came from familiar doctrines of equity. n343 Two years after Tyler, in
Davis & Farnum Manufacturing Co. v. City of Los Angeles, n344 Justice Brown
employed the metaphor of "standing" and invoked the jus tertii reasoning of
Tyler by analogy.
In Davis, a subcontractor on a gas tank construction project sought to
enjoin Los Angeles from enforcing municipal ordinances banning the project. The
subcontractor had an obvious economic interest in the project, and employees of
the subcontractor were being prosecuted for violating the ordinance. The
subcontractor sought to enjoin the pending state criminal proceedings on
constitutional grounds, claiming that later enacted ordinances impaired the
obligation of a preexisting contract to build the gas works. n345 In his
opinion for the Court, Justice Brown dismissed the subcontractor's interest as
too indirect: "[T]his is not a bill by ... the owner of the land and of the
proposed gas works ... nor by the contractor, with which she had made a
contract to erect these works; but by a subcontractor...." n346
The Court held that the subcontractor did not "stand ... in [a] position
... to take advantage of the unconstitutionality of [the] law" because "it has
an action against the Gas and Fuel Company, which is presumed at least to be
able to respond in damages for all such as plaintiff may have suffered by the
interruption of the contract...." n347 Thus [*1434] Davis was not a
case of "standing" in which the Court viewed the plaintiff as having no
personal interest in the outcome of the dispute.
Conceptually, Davis held that the subcontractor could not use a
part-whole schema or a link schema to invoke the "personal" claim of the
general contractor. The subcontractor's complaint, after all, was that the
municipal ordinance affected everyone in the chain extending from the land
owner, to the general contractor, through it (as an intermediate link), to its
own employees. The Court said that the subcontractor could not invoke the joint
interest of the whole chain. The subcontractor would have to deal with the
other link, the general contractor, on its own.
Doctrinally, the lower federal courts interpreted Davis as concerning
the scope of the equity jurisdiction of the federal courts. n348 Two other
equity cases, frequently cited in modern standing opinions, illustrate this
equitable, rather than constitutional, origin of the link between jurisdiction
and adequacy of one's personal interest: McCabe v. Atchison, Topeka & Santa
Fe Railway Co. n349 and Truax v. Raich. n350
In McCabe, five black persons sued to enjoin compliance by five
railroads with the terms of a post-Plessy v. Ferguson n351 Oklahoma statute.
The statute explicitly required that railroad provide separate but equal
facilities. But it allowed one-race sleeping, dining, and chair cars without
providing such "luxury" accommodations to the other race. The district court
upheld the statute. The Court questioned that part of the statute which
deviated from the separate-but-equal doctrine, rejecting the state Attorney
General's argument that the railroads experienced insufficient demand for
services to justify all-black sleeping, dining, and chair cars. n352 "It makes
the constitutional right depend upon the number of persons who may be
discriminated against, whereas the essence of the constitutional right is that
it is a personal one." n353
The Court nevertheless affirmed. Citing Davis and Tyler, the Court
[*1435] held that plaintiffs were not entitled to equitable relief.
It reasoned that, in order to justify such relief, the plaintiffs must
demonstrate personal injury, n354 and there must be no adequate remedy at law.
n355 The concluding passage of the opinion reveals that the Court was
considering traditional rules of equity, not constitutional or prudential rules
Nor is there anything to show that in case any of these complainants
offers himself as a passenger on any of these roads and is refused
accommodation equal to those afforded to others on a like journey, he will not
have an adequate remedy at law. The desire to obtain a sweeping injunction
cannot be accepted as a substitute for compliance with the general rule that
the complainant must present facts sufficient to show that his individual need
requires the remedy for which he asks. n356
In Truax, decided a year after McCabe, the Court revealed the flip side
of an equitable, nonconstitutional analysis that depended on the directness of
the plaintiff's interest. Mr. Raich, who was from Austria, was a cook in Mr.
Truax's restaurant. Arizona passed a statute requiring that at least 80 percent
of a business' employees be Americans. Mr. Truax informed Mr. Raich of his
intention to discharge Raich because of the statute. Mr. Raich subsequently
brought an action in equity to declare the statute unconstitutional and enjoin
its enforcement. n357 The state argued that the employer was subject to
criminal prosecution, not Mr. Raich, and that therefore Raich could not sue to
present the employer's complaint. n358 The Court rejected the argument,
premised on McCabe, that "the complainant cannot sue save to redress his own
grievance...." n359 It noted that "the discharge of the complainant will be
solely for the purpose of meeting of the requirements of the act and avoiding
threatened prosecution.... It is, therefore, idle to call the injury indirect
or remote." n360 The Court added that Mr. Raich had no adequate remedy at law,
concluding, "that the case falls within the class in which, if the
unconstitutionality of the act is shown, equitable relief [*1436]
may be had." n361
Taken together, McCabe and Truax illustrate the equitable source of the
modern doctrines of injury-in-fact and of prudential avoidance of
constitutional decisions. These cases concerned traditional rules of equity
about the limits of its jurisdiction: Equity acted only when necessary; equity
grew out of the discretion of the chancellor to determine which interests were
sufficiently important to justify the invocation of a coercive, in personam,
remedial power rooted in a concern for justice. n362 These doctrines, and not
article III specifications about the sufficiency of the litigant's interest,
dominated the discourse when the Court subsequently dealt with the question of
citizen and taxpayer "standing."
The significance of cases like Tyler, Davis, McCabe, and Truax to the
development of constitutional standing, however, was not doctrinal. Rather,
these cases were important because they rejected the underlying
representational model of the previous century in favor of a model that was
strictly individualist. Only Mr. Raich's claim could be maintained because his
was not dependent on a representational schema. Mr. Raich's claim was
consistent with the causal source-path-goal metaphor. The Court noted that the
purpose of the act was directed at aliens such as Mr. Raich and that the path
was neither circuitous nor attenuated. n363 On the other hand, Mr. Tyler's link
to other members of the community no longer sufficed to justify his invocation
of the concerns of other parts of "the great body of his fellow citizens." n364
The fact that Mr. McCabe was challenging the actions of a public carrier on
behalf of all black passengers no longer sufficed as in Hall; the fact that the
subcontractor in Davis was an intermediate link in the chain affected by the
municipal ordinance was no longer relevant. The Court disapproved the
representational submodels premised on link and part-whole schemata and these
links between individuals were severed. Yet, the public rights submodels with
simpler part-whole schemata, that is, the representational model in which the
whole acted for the parts, and the constituent model in which one part acted
for the entity itself remained intact until the next decade.
C. States' Rights, Private Rights, and Public Rights
The Court invoked the private rights model in the 1860s to block the
attempts by southern states to challenge the Reconstruction program. Professor
Monaghan cited this invocation as the clearest demonstration of the limitation
of article III jurisdiction to "concrete 'private [*1437] rights.'"
n365 However, Monaghan's analysis is distorted by hindsight. In the 1860s, the
Court did not apply the private rights model as an alternative to the
intermediate public rights model, but rather as an alternative to viewing
certain matters as nonjusticiable "political questions." Indeed, the Court
vacillated for decades on the issue of whether states could invoke the public
rights model on behalf of their citizens.
In Georgia v. Stanton, n366 the state filed an original bill in equity,
asking the Court to restrain the execution of the original Reconstruction Acts
setting up military governments in the southern states. The Attorney General
argued against jurisdiction on the grounds, inter alia, that the case presented
a political question, was premature, and that the alleged harm was speculative.
n367 The state argued that equity jurisdiction was proper: "Much has been said
about all the evil alleged in the bill being contingent and future.... The fact
is quite otherwise. A bill quia timet is one of the very heads of equity
jurisdiction." n368 Georgia took the position that the case was justiciable
because it fell within the familiar forms. n369
The Court conceded that it had a "case" before it that appeared, in
form, to fall under equity jurisdiction, but agreed with the Attorney General
that the case was political and nonjusticiable:" [I]n order to entitle the
party to the [equitable] remedy ... the rights in danger ... must be rights of
persons or property, not merely political rights, which do not belong to the
jurisdiction of a court, either in law or equity." n370
Florida v. Anderson, n371 decided seven years later, reads like an
assertion of the private rights model. The majority opinion even expresses the
jurisdictional question in terms of "a standing in court." n372 Anderson was an
original bill in equity instituted by the Florida Attorney General on behalf of
the state and the trustees of its internal improvement trust fund. The suit
sought to protect a statutory lien on some railroad property by setting aside a
prior judgment foreclosing on the property [*1438] and by
invalidating the subsequent sale of the railroad. n373 The defendants
challenged the Court's jurisdiction on the ground that only the trustees were
proper party plaintiffs, and that the trustees could not invoke the original
jurisdiction of the Court. The Court held that the state was the real party in
interest and, thus, could invoke the Court's original jurisdiction. n374
In Anderson, as in Stanton, the Court defined its equity jurisdiction in
terms of the private rights model's focus on property rights. n375 In Anderson,
the issue was whether the state's interest was sufficiently direct to invoke
the extraordinary equity power to set aside judgments and invalidate sales. It
was solely in this sense that the Court asked whether the state had "a direct
interest in the ... controversy ... as to give it a standing in court." n376
The use of the term "standing" did not address the constitutional
impermissibility of asserting public rights in the absence of private injury.
The Court, which endorsed the public rights model in Hall the same Term that it
decided Anderson, is unlikely to have intended to reject in Anderson what it
had just approved in Hall. n377
Indeed, Anderson appears to have had no direct impact on the later
development of the doctrine of standing. The only time the Court cited Anderson
was in the companion case to Frothingham, Massachusetts v. Mellon. n378 In its
discussion of the political question doctrine, the Court cited Anderson as an
example of the kinds of justiciable questions that a state may raise. n379 The
Court did not cite Anderson as an example of an [*1439] article III
limitation to the private rights model in its consideration of the sufficiency
of the plaintiff's interest in Frothingham.
Subsequent to Anderson, the Court invoked the public rights model in a
similar federal context in Debs. n380 For the next half century, the Court
vacillated over the permissibility of state invocation of the public rights
model. The first Justice Harlan argued frequently for the private rights model
as a "case or controversy" limitation on suits brought by the states; n381
Justice Holmes, by contrast, argued that the states could appear to vindicate
"quasi-sovereign interests." n382
The public rights model of state litigation was ascendent for a time.
The Court recognized the state's interest "as the representative of the
consuming public" in 1923 in Pennsylvania v. West Virginia, n383 and "as agent
and protector of her people" in 1945 in Georgia v. Pennsylvania Railroad. n384
In 1971, the second Justice Harlan reaffirmed the justiciability of a public
nuisance case brought by the State of Ohio. n385 Five years later, however, the
Court reversed course yet again. In Pennsylvania v. New Jersey, n386 a case
involving interstate taxation, the Court rejected a parens patriae suit by
Pennsylvania as "nothing more than a [*1440] collectivity of
private suits...." n387
In the first quarter of the century, the disagreement on the Court about
the public rights model of state litigation was related to the continued
viability of the constituent submodel of the public rights model. Justice
Brandeis' solitary dissent in Pennsylvania v. West Virginia identified the
traditional syllogism of the forms with the private rights model: "They are not
proceedings 'instituted according to the regular course of judicial procedure'
to protect some right of property or personal right." n388 In doing so,
however, he not only failed to carry any other votes with him, but also failed
to produce any authority. The statement quoted by Brandeis was not attributed
to any source; earlier drafts attributed it to Marbury v. Madison n389 until
the Justice's law clerk pointed out that Marbury contained no such statement.
Justice Brandeis' attack on the public rights model had yet to be
formulated into a coherent strategy premised on a recognizable doctrine of
justiciability. n391 But there was no doubt about the prospective nature of his
concern nor that he saw it as a matter for justiciability doctrine. As he
expressed it to his confidant Felix Frankfurter:
The most terrible thing the Court did was assumption of jurisdiction
in West Virginia Natural Gas case. Van D[evanter] by general phrases glides
over total absence of jurisdictional basis in Record. I don't care much about
natural gas — it will soon be all gone — but the decision is very
important as to hydroelectric. n392
And the hydroelectric issue did come in Ashwander v. Tennessee Valley
Authority, n393 brought to the Court by means of the stockholder derivative
instance of the constituent model.
[*1441] D. Constituent Standing
Equity developed its own version of the constituent model premised on
the part-whole schema: the shareholder derivative suit. There too, the courts
spoke in terms of "jurisdiction" and, as in Ashwander, "standing." The question
was whether equity could be invoked at the request of a constituent part to
prevent illegal action harmful to the entity as a whole. It was derivative
because the constituents' claim was premised on a source-path-goal schema that
applied to the entity. The claims sought to address the injury of the
corporation. This doctrine served as the model for the taxpayer actions of the
late nineteenth and early twentieth centuries.
The first shareholder suit to reach the Supreme Court was Dodge v.
Woolsey, n394 a challenge to a state tax on a corporation. The Court invoked
the part-whole metaphor, noting "that courts of equity, in both [England and
the United States], have a jurisdiction over corporations, at the instance of
one or more of their members." The Court also justified this jurisdiction with
a familiar doctrine having a communitarian ring: "breach of trust." n396 The
Court subsequently upheld shareholder standing in Pollock v. Farmers' Loan
& Trust, n397 Smith v. Kansas City Title & Trust, n398 and Ashwander v.
Tennessee Valley Authority. n399
The Court's doctrinal concern, when first considering taxpayer and
citizen suits, was with the availability of the equity power. This was clear in
Crampton v. Zabriskie, n400 a case brought by municipal taxpayers. In
[*1442] Crampton, the Court held that there was "no serious
question" about "the right of resident tax-payers" to use an equity court to
prevent the county from creating debts for which the plaintiffs "in common with
other property-holders of the county" would eventually be liable. n401 In
Crampton, the Court recognized the analogy to the part-whole schema of the
shareholder suit: "[T]here would seem to be no substantial reason why a bill by
or on behalf of individual tax-payers should not be entertained to prevent the
misuse of corporate powers." n402
Five times before Frothingham, the Court passed over the putatively
jurisdictional issue of "standing" in taxpayer suits. In Bradfield v. Roberts,
n403 Wilson v. Shaw, n404 and Millard v. Roberts, n405 taxpayer suits to enjoin
federal actions were rejected on the merits. And, in Hawke v. Smith, n406 and
Leser v. Garnett, n407 citizen taxpayer suits to enjoin allegedly
unconstitutional state actions also were decided on the merits.
The briefs in these cases underscore the degree to which the questions
of "standing" and the constituent model were seen as nonconstitutional and a
function solely of the rules of equity jurisprudence. For example, the federal
government's brief in Bradfield conceded that the Court would probably want to
reach the merits and noted that: "[t]he Government has no strenuous objection
to interpose." n408
In Wilson, the plaintiff responded to the argument that "a private
citizen has not the necessary interest in the subject-matter of the
controversy" by noting that "[t]he objections urged here are the same, which
from the beginning have been brought against the jurisdiction of equity in all
cases of this character." n409 He relied on the shareholder constituent model
as support: "Private citizens under such circumstances occupy exactly the
position of stockholders in private corporations...." n410 The
[*1443] federal government replied by invoking equity's
individualist model, citing treatises on equity in support of its proposition
that a plaintiff must show "some direct and personal injury to himself above
that suffered by others." n411 The Court declined to rule on the sufficiency of
Mr. Wilson's interest in maintaining the suit, instead ruling against him on
the basis of familiar equity doctrines. It observed that the plaintiff's
interest was insufficient to justify the issuance of an injunction to stop work
on the Panama Canal, given the balance of hardships. n412
Thus, when the attack came on the constituent model at the federal
level, it did not come in terms of standing as we now view it. Rather, it was
articulated in much the same way as in Justice Brandeis' opinion in
Pennsylvania v. West Virginia, the natural gas case in which he attacked
another version of the part-whole public rights model. n413
Fairchild was a constitutional challenge to the adoption of the
nineteenth amendment, which granted women the vote. Once again, Justice
Brandeis invoked the syllogism of the forms.
Plaintiff's alleged interest in the question submitted is not such as to
afford a basis for this proceeding.... In form it is a bill in equity; but it
is not a case, within the meaning of § 2 of article 3 of the Constitution
... for no claim of plaintiff is "brought before the courts for determination
by such regular proceedings as are established by law or custom for the
protection or enforcement of rights, or the prevention, redress, or punishment
of wrongs." n414
Justice Brandeis' attack on the constituent model followed, but it was
terse and conclusory: "Plaintiff has only the right, possessed by every
citizen, to require that the government be administered according to law and
that the public moneys be not wasted. Obviously this general right does not
entitle a private citizen to institute [a suit] in the Federal
[*1444] courts...." n415 He cited Tyler as an analogy in support of
this last proposition. n416
A reading of the briefs from the federal government in Fairchild, and
its companion case, Leser v. Garnett, n417 strongly suggests that Justice
Brandeis' opinion in Fairchild was not yet a constitutional restraint on the
constituent model. The federal government's brief in Fairchild argued that the
action was not a "case" in law or equity under article III because of the
absence of a "practical conflict of interest." n418 No cases were cited as
authority for this proposition; the brief relied on the refusal of the Court to
provide an advisory opinion when requested to do so by President Washington.
n419 In contrast, the government's amicus brief in Leser acknowledged without
explanation that the state judgment on review did "present a concrete 'case'
within the meaning of the Judiciary Article...." n420 As we have seen, Justice
Brandeis' opinion in Fairchild did not adopt fully the "practical conflict"
position, but rather folded it into the traditional syllogism of the forms.
Justice Brandeis also authored the Court's opinion in Leser, which was
announced the same day as Fairchild. In Leser, Justice Brandeis argued that the
suit could be brought: "The laws of Maryland authorize such a suit by a
qualified voter...." n421 That case was decided on the merits despite the
absence of a "practical conflict", and upheld the validity of the nineteenth
amendment. Thus was the government's attempt to invoke a novel article III
"case or controversy" bar temporarily rebuffed and the public rights model and
the traditional syllogism of the forms maintained.
Frothingham n422 followed. The Frothingham Court began its analysis with
a discussion of nonconstitutional doctrines of equity, proceeded to reason from
the constituent model in a way that shows clear prototype effects, then
rejected the intermediate status of the public rights model, and finally raised
constitutional considerations that helped lead to a [*1445] modern
conception of standing. Yet, the Court closed not with a doctrine of standing,
but with an invocation of the syllogism of the forms.
The Court first considered whether the federal taxpayer could invoke the
equity power. n423 The Court used familiar equity doctrines to distinguish the
municipal taxpayer standing cases in a manner that displayed a partial
reduction-to-prototype effect. It reasoned not that the more "direct" interest
of the municipal taxpayer affected the article III calculus of "case or
controversy," but that the discretionary availability of the equity power
properly considered questions of immediacy and the degree of threatened harm.
"The interest of a taxpayer of a municipality in the application of its moneys
is direct and immediate...." n424 The Court acknowledged, therefore, the
continuing viability of the constituent model for that level of government:
"The reasons which support the extension of the equitable remedy to a single
taxpayer in such cases are based upon the peculiar relation of the corporate
taxpayer to the corporation, which is not without some resemblance to that
subsisting between stockholder and private corporation." n425 The federal
taxpayer's connection to the body politic, in contrast, seemed too far removed
from the corporate prototype of equity's constituent model. The Frothingham
Court characterized the federal taxpayer's constituent interest as "minute,"
"indeterminable," and "so remote, fluctuating and uncertain, that no basis is
afforded for an appeal to the preventive powers of a court of equity." n426
Frothingham makes historical sense as a case about the availability of
an equitable remedy. On a doctrinal level, it was the invocation of equitable
discretion to deny a remedy on the basis of the directness of the plaintiff's
injury. The Court started with the constituent model available in equity and
used prototype reasoning to exclude taxpayer actions as too great an
extrapolation. The opinion was not entirely consonant with the public rights
model known to the Framers, for it saw the corporation, and not the society, as
the prototype of a part-whole organization. But the opinion maintained a
certain doctrinal consistency. The English writs of mandamus, prohibition, and
certiorari were available to a stranger without a direct interest. n427 In
those cases, however, the court retained discretion to adjust or withhold the
remedy in order to prevent abuse and to achieve just results. n428 The courts'
discretion derived from the fact that, although these writs were devices of the
King's Bench, and thus remedies "at law," they also were instruments
[*1446] of the sovereign's power and therefore implicated the
prerogative of royal discretion typical of equity. n429
Frothingham's reliance on separation of powers notions can be understood
as the invocation of structural concerns to guide the discretionary use of the
court's equitable power. n430 Indeed, Justice Brandeis' unheeded argument
thirteen years later in Ashwander was premised on exactly this blend of
equitable discretion and prerogative writ practice. n431
In Frothingham, as in Fairchild, the Court was struggling with the
constituent model. Frothingham did not recognize an intermediate status for the
public rights model. Instead, it insisted on an individualist model: The
question of additional taxation was "essentially a matter of public and not of
individual concern." n432 But the Court stayed decidedly within the tradition
in its notion of justiciability, still reasoning in a quite old-fashioned way
about the scope of the judicial power, as had Justice Brandeis. To the 1923
Court, no less than to the Court of a hundred years earlier, a legal question
had to "assume such a form that [*1447] the judicial power is
capable of acting on it." n433 Because the Frothingham Court concluded that the
case did not present a proper bill in equity, it held that the case did not
assume a recognizable form; because the Court did not recognize the
intermediate nature of the nineteenth century public rights model, it did not
see before it one of those things to which the judicial power extended. The
Court held that:
The party who invokes the [equity] power must be able to show ... that
he has sustained or is immediately in danger of sustaining some direct
injury.... If a case for preventive relief be presented the court enjoins, in
effect, not the execution of the statute, but the acts of the official.... Here
the parties plaintiff have no such case. Looking through the forms of words to
the substance of their complaint, it is merely that officials of the executive
... will execute an act of Congress asserted to be unconstitutional; and this
we are asked to prevent. To do so would be not to decide a judicial
What Frothingham had accomplished through its equity reasoning was to
recreate the private rights model as the only available form. To invoke the
equity power, the plaintiff had to establish the causal source-path-goal schema
— that is, the plaintiff had to establish "that he has sustained or is
immediately in danger of sustaining some direct injury." Direct injury was thus
essential to make a proper bill in equity, and a proper bill was necessary to
make a "case." Drop the syllogism of the forms, however, and you have the
modern doctrine of standing: Direct injury (as in the causal source-path-goal
schema) becomes necessary to a constitutional "case."
Neither Frothingham nor Fairchild became cases of "standing" until
later. n435 Rather, the Court continued to talk of "standing" solely in the
context of equity as it had before. In fact, only a few years after Frothingham
and Fairchild, the Court reaffirmed that "standing is a question going to the
merits, and ... determination [of standing] is an exercise of jurisdiction."
In the meantime, Justice Brandeis continued to argue — usually
alone — the broader implications of his Fairchild opinion for the
constituent model. In 1923, the same year as Frothingham, he failed to convince
his colleagues that the original bills in Pennsylvania v. West Virginia
"present[ed] neither a 'case' nor a 'controversy' within the meaning of the
Federal Constitution," but were instead "instituted frankly to secure from this
Court a general declaration that the West Virginia Act [*1448] ...
is unconstitutional." n437 Thirteen years later in Ashwander, he tried to
destroy equity's constituent model at its source. His memorandum to his
colleagues argued that:
Stockholders may, within the recognized limits, invoke the aid of the
courts to enjoin illegal acts which threaten their own property rights. But
they are no more entitled to a judicial remedy to restrain action which ... do
not imperil their property, merely because the action is alleged to be illegal.
They are not guardians of the public. The function of guarding the public
interest against acts ultra vires or otherwise illegal rests with the public
officials. The belief that the company action is unconstitutional gives the
stockholder no greater right than that possessed by any other citizen.
Ultimately, Justice Brandeis dropped this position and argued that the
primary obstacles to the shareholders' suit were nonconstitutional. The final
version of his argument — which garnered the support of Justices Cardozo,
Roberts, and Stone — characterized Tyler, Fairchild, and Frothingham
merely as examples of the canon of judicial self-restraint that "[t]he Court
will not pass upon the validity of a statute upon complaint of one who fails to
show that he is injured by its operation." n439 In a historically overlooked
portion of the opinion, Justice Brandeis concentrated much of his fire on the
impropriety of the shareholder derivative version of the constituent model,
trying to limit or disapprove the holdings of Pollock, Brushaber, and Smith.
In 1937, in a per curiam opinion denying the motion challenging Judge
Black's appointment, the Court interpreted Tyler, Fairchild, and Frothingham as
limiting the availability of the "judicial power" to one who "has sustained, or
is immediately in danger of sustaining a direct [*1449] injury...."
n441 But, the degree to which this constitutionalized interpretation was not
yet a conventional understanding of these cases is underscored by the Court's
conclusory rhetoric, referring to this as an "established principle." n442 It
was another year before Justice Frankfurter linked the term "standing" with
article III in his concurring opinion in Coleman v. Miller. n443 And, even
then, it came very much by surprise to the participants and the Court.
In Coleman, Kansas legislators challenged the means by which their state
had voted to ratify a pending amendment to the Constitution. n444 The
legislators filed a petition for a writ of mandamus in the state courts. The
state court upheld its jurisdiction over the mandamus petition, but denied
relief. The Coleman Court rejected "the contention that petitioners lack an
adequate interest to invoke our jurisdiction...." n445 The majority held that
the Kansas legislators had "standing" in the sense of Owings v. Norwood n446
because they had alleged an infringement of their right to vote and thus "come
directly within the provisions of the statute governing our appellate
jurisdiction." n447 The Court cited Leser for the proposition that it had
jurisdiction, noting the contrast to Fairchild, which had been decided the same
The Coleman majority also rejected decisively the notion, put forward by
Justice Frankfurter, that jurisdiction only extended to cases that fit the
private rights model, that is, cases of "private damage." n449 The Court cited
Frothingham to illustrate that the question of a taxpayer's interest raised not
a threshold problem of justiciability, but rather was only a matter of degree.
n450 The Court, nevertheless, held the case nonjusticiable as presenting a
political question. n451
The majority's discussion of these questions reflected the argument in
the federal government's amicus brief, signed by Solicitor General Robert
Jackson and by Special Assistant Paul Freund. The brief noted that the
sufficiency of the plaintiffs' interests under Fairchild was a problem that
only arises in a federal action. n452 The government, therefore, accepted that
the decision of the state courts below to entertain the suit
[*1450] "does not present a Federal question." n453 The only
question of jurisdiction, according to Jackson and Freund, was whether the
Court could consider the case under its jurisdictional statute. Since the
legislators had set up a right or title of their own — "the privilege of
carrying out their functions as public officers" n454 — the brief
concluded that "[s]tatutory jurisdiction in this Court, then, clearly exists."
Having disposed of the Fairchild and Owings questions, the brief then
turned to what it viewed as a question of an entirely different order: "[T]he
essential question is not strictly jurisdictional but relates rather to ...
standing...." n456 The brief concluded that standing was present in the Kansas
case because the petitioners were legislators who claimed an infringement of
their right to vote. n457
Although the government's position and its understanding of the
foundations of the standing concept were accepted in the majority opinion,
Justice Frankfurter had an entirely different view. At oral argument, Justice
Frankfurter asked Mr. Coleman's lawyer to reconcile the case with Fairchild.
The petitioners subsequently submitted a memorandum brief on jurisdiction that
reveals how startling the question really was:
Mr. Justice Frankfurter on the bench asked me to reconcile this case
with Fairchild v. Hughes. We regret our inability to do so in oral argument,
but the case of Leser v. Garnett, decided the same day and reported in the same
volume with Fairchild v. Hughes, is such a complete answer that it seems as
though I must have misunderstood the purport of the question. n458
[T]he state is a party to the litigation and all of the people of the
state are interested.... So far as the right of the parties to maintain the
suit in the state court is concerned, it is definitely settled and that brings
us squarely within the rule of Leser v. Garnett. This is so evident that it
seems I must have misunderstood the real purport of the question.
[*1451] It is understandable that counsel missed the import
of Justice Frankfurter's question and relied on the public rights model of
mandamus by insisting that "all of the people of the state are interested."
And, I think, it is safe to assume that Justice Frankfurter's question was
calculated. For, in his concurring opinion, Justice Frankfurter opined, in
contrast to that which the parties argued, that courts could only consider
"cases and controversies." n460 Invoking Fairchild, he argued that "[i]n the
familiar language of jurisdiction, these Kansas legislators must have standing
in this Court." n461 "'Private damage' is the clue ... and determines [the]
scope ... of [such] cases in this Court...." n462
Thirteen years later, in Joint Anti-Fascist Committee v. McGrath, n463
Justice Frankfurter took Coleman a step further and made the first attempt to
synthesize this private rights model, the constitutional phrase, and the
various "standing" cases of the previous half-century into a single coherent
doctrine concerning the sufficiency of the litigant's interest required by
article III and related prudential considerations. n464 It was not until
Doremus v. Board of Education n465 that a full Court dealt with standing in
exclusively constitutional terms, n466 and not until Baker v. Carr n467 and
Flast v. Cohen n468 that the Court fully discussed the new doctrine.
For over a hundred years, the metaphor of "standing" was shorthand for
the question of whether a plaintiff had asserted claims that a court of equity
would enforce. Frothingham articulated a familiar doctrine of equity concerning
direct and irreparable injury, rejected the application of the constituent
model as a matter of degree, and then applied a traditional notion of
justiciability that focused on observance of the forms. But Frothingham arose
in the context of a larger dispute about the viability of the representational
and constituent models. In the end, Justice Brandeis all but gave up the fight.
Then, someone else provided a label to comprehend both the private rights model
and those cases that talked about the sufficiency of the plaintiff's personal
[*1452] interest in terms of "jurisdiction." That label, of course,
was one that fit metaphorically: "standing." A meaning transplant was effected,
and the modern doctrine of standing was born.
E. Ideology and the Motivation of Standing
There are several possible historical explanations for the successful
convergence of the private rights model and the "standing" metaphor into modern
constitutional standing doctrine. Five factors seem to have contributed to this
First, the passage of the federal question jurisdiction statute and the
extension of the removal jurisdiction in 1875 n469 affected significantly the
workload of the federal courts. From the trial courts to the Supreme Court,
"they unloosed a flood of litigation utterly beyond the existing capacity of
the courts to handle." n470 Between 1870 and 1890, the number of cases on the
Supreme Court docket grew almost 300 percent. n471 During the same period, the
number of nonbankruptcy cases in the lower federal courts more than doubled.
n472 For the next fifty years, Congress struggled with the problem of an
unmanageably large caseload in the federal courts both by jurisdictional
tinkering and by wholesale court reorganization. n473
It should come as little surprise that the courts were not passive
during this onslaught. Several of the classic exclusionary doctrines of federal
jurisdiction developed in this period, including both the well-pleaded
complaint rule n474 and the independent and adequate state ground rule. n475
Moreover, the growth in the federal workload and the search for limits
coincided with the systemization of the law of equity, n476 from which standing
law grew. Starting as a question of entree [*1453] to equity
jurisdiction, "standing" could, in a time of severe docket pressures, naturally
evolve into a doctrine about entree into the federal court system itself.
Second, during the late nineteenth and early twentieth centuries, the
modern administrative state began to take root. The Interstate Commerce
Commission was formed in 1887, the Federal Trade Commission in 1913, and the
Federal Power Commission in 1920. Administrative law, of course, created the
potential for more adjudication, with its strain on court workload.
Administrative agencies also created a vastly larger machinery of government,
increasing the interaction between government and the citizenry and the
potential for the invocation of the public rights model. This increasing
interaction was a potential source of strain for the previous equilibrium of
public and private rights in the legal and social system. In each of their
respective areas, the administrative regimes created new webs of legal
requirements and potential entitlements in previously unregulated corners of
society. With the extension of government regulation to vast new domains, the
public rights model and application of the classic model of rights and
correlative remedies to redress all injuries presented inordinate new problems.
Third, at precisely this time an old but previously marginal legal
concept stepped to the fore in a dramatic way. "From ... 1880 to 1920, damnum
absque injuria [that is, damage without cognizable injury] emerged as the
central issue of theoretical concern" to those attempting to synthesize and
explain the law. n477 Perhaps not coincidentally, this concept served to defuse
the pressures of the administrative state.
The theoretical incorporation of damnum absque injuria revolved around
three major areas of inquiry. They were: (1) the emergence of the concept of
legally protected interests; (2) focus on economic competition as an
alternative model ...; and (3) the problem of uncorroborated liberties
generally.... To the extent that others have the legal liberty to act or not to
act, the damage they inflict on us violates "no [legal] rights" of ours, and we
have no claim on the legal system to protect us from such harms or to provide
us with remedies. n478
The potential problems of the administrative state could thus be
forestalled by the extension of a traditional doctrine: damnum absque injuria
counselled that "[l]egally protected interests are not granted absolute
protection, as the concept of protected rights had misleadingly implied." n479
The [*1454] administrative state could be domesticated; extensive
new regulations and interests could be created without necessarily creating new
These three notions raised by the incorporation of damnum absque injuria
into the legal mainstream are reflected with clarity in the nonconstitutional
precursors of standing, especially in the equity and early administrative law
cases: the legal interest test, n480 the denial of competitor "standing," n481
and the repeated denial of injunctive relief to litigants who had suffered
actual harm. n482 While not yet a theory of "standing," damnum absque injuria
provided a basis for, and a model that justified, a later constitutional
doctrine that recognized the validity of a complaint but refused to provide a
Fourth, the rise of liberalism in the nineteenth century led to the
primacy of the private rights model and to modern standing law in two ways. A
basic tenet of liberalism is the primacy of the individual as the focus of the
political and moral world. n483 "Standing" is a conceptualization of the
individual as the primary rights-holder, to the exclusion of his or her place
in a larger community of interdependent legal and social interests. n484
Liberalism is further premised on the freedom of each individual to choose his
or her own, equally viable ends. n485 Accordingly, it focuses upon a regime
that achieves agreement on process rather than end goals. n486 Liberalism
intensified the preexisting proceduralism of the law; where the writ system had
treated procedure and substance as closely interrelated, standing law turned
from the legal interest test to focus instead on a definition of process
separate from the substantive merits of the reason for which it is invoked.
This concept of neutral, process-oriented criteria, entirely separated from the
merits, constitutes the second major component of the "standing" metaphor, as
we have seen. n487
Fifth, the thrust of the enlargement of the federal court workload
[*1455] and the weltanschauung of liberalism interacted in a
specific, synergistic way. It occurred during the time of substantive due
process and the exercise of expansive federal judicial power in the economic
sphere to invalidate progressive legislation. n488 It is thus no accident that
many of the early taxpayer standing cases involved attacks on federal
legislation addressed to an activist conservative Court. n489 The first few
were rejected on their merits. But soon the primary stance of the liberal
judicial resistance was the development of doctrines of procedural limitation.
n490 In this formative period, Justice Brandeis reported to his confidant Felix
Frankfurter his famous remark to Justice Holmes: "I tell him, 'the most
important thing we do is not doing.'" n491 Frothingham was a product of the
liberal judicial resistance to substantive due process, as Justice Douglas
explicitly acknowledged in his separate opinion in Flast v. Cohen. n492
While my analysis suggests that the development of standing was a
calculated effort, this account is consistent with a theory that stresses the
unconscious, ontological effects of the relevant metaphors and cognitive
models. It is the concept of motivation that explains the relationship between
conscious intent and these unconscious, ontological effects. People use
cognitive models and metaphors to express and accomplish their purposes. In
reimagining the world, we make use of the existing conceptual system.
[T]he theory we have given makes a prediction: the generated images will
be among the conventional images of the culture, they will make
[*1456] use of cultural knowledge, and there will be one or more
metaphors already in the conceptual system that link the image and the
knowledge to the meaning.... In short, the principles we have proposed to
characterize the nature of motivation ... constrain what such images can be
[T]he fact that extensions from the center of categories are neither
predictable nor arbitrary, but instead are motivated, demonstrates the
ecological character of the human mind.... [T]he term "ecological" [expresses]
the sense of a system with an overall structure, where effects cannot be
localized — that is, where something in one part of the system affects
things elsewhere in the system. Motivation depends on overall characteristics
of the conceptual system, not just local characteristics of the category at
In trying to develop doctrines of jurisdictional limitation, Justices
like Brandeis and Frankfurter naturally reached for the cognitive tools at
hand. They naturally focused on those models and metaphors that fit their
purposes. And they naturally chose the private rights model and the "standing"
metaphor, which had become conventional in legal culture.
The liberals were interested in protecting the legislative sphere from
judicial interference. Their goal was to assure that the state and federal
governments would be free to experiment with progressive legislation. n495 The
private rights model was not just an available prototype, [*1457]
it was an ascendant prototype that would serve their purposes well. By
excluding the public rights model with its part-whole schema, the liberals
could preclude any dissatisfied private citizen from invoking the Constitution
in the courts to challenge the progressive programs enacted by the polity.
Moreover, the source-path-goal schema of the private rights model could
make a distinct and important contribution to the liberals' aims. The broad
social and economic experiments of the New Deal, like the hydroelectric program
at issue in Ashwander, would have varied and unpredictable effects throughout
society. The causal source-path-goal schema limits litigation to direct
victims. It therefore serves to insulate from judicial scrutiny governmental
actions with many, diffuse, and indirect effects. It was just this insulation
that was required for the success of the social and economic programs that were
the center of Brandeis' and Frankfurter's concern. n496
In adopting these cognitive tools, the effect on the liberal Justices
was ecological: This explains Brandeis' position, in Willing v. Chicago
Auditorium Association, n497 that a declaratory judgment was not a proper bill
in equity and, thus, was beyond the federal judicial power. His program of
judicial restraint entailed a limitation of the federal courts to suits that
fit the source-path-goal schema of the private rights model. The declaratory
judgment action did not fit comfortably with that schema. By definition, there
is no injury at the time a declaratory judgment plaintiff seeks the court's
intervention. The suit, therefore, has no source.
As we have seen, Justice Brandeis never fully articulated these
concepts. The Court had already begun, in cases like Tyler, Davis, and
Massachusetts State Grange v. Benton, n498 to apply equitable,
preconstitutional doctrines of directness of injury and of standing, to reject
citizen claims in neutral, process-oriented terms. In Fairchild, Justice
Brandeis connected these notions to the traditional article III syllogism of
the forms. Ashwander was a partial retreat, recasting the same cases back into
their equitable forms as discretionary doctrines. Then, Frankfurter grasped the
cognitive tools and fashioned an article III doctrine called "standing" that
made a constitutional prerequisite of the prototypical private rights model.
Standing law was, thus, the ultimate constitutional legacy of the program of
judicial conservatism that was the liberals' response to the substantive due
[*1458] V. THE OBFUSCATORY POWER OF METAPHOR
Language is a guide to "social reality." ... [I]t powerfully
conditions all our thinking about social problems and processes. Human beings
... are very much at the mercy of the particular language which has become the
medium of expression for their society. n499
As we have seen above, the original conceptualizations of adjudication
encompassed both a public and a private rights model and contained no
constitutional concept of standing. Disparate concepts of rights and remedies
often expressed by the metaphor of "standing" were replaced by a single,
conceptual ordering of the adjudicatory universe requiring injury, consistent
with the private rights model. In Coleman v. Miller, n500 Justice Frankfurter
nimbly invoked two parallel cognitive processes to combine the prototypical
private rights model with the "standing" metaphor to converge on a single
epistemically coherent result: a constitutional doctrine of standing.
Part of the explanation for the success of this convergence relates to
the interaction of political power and metaphor: "[W]hether in national
politics or in everyday interaction, people in power get to impose their
metaphors." n501 If Brandeis and Frankfurter laid the road from Fairchild v.
Hughes n502 to Coleman and Joint Anti-Fascist Refugee Committee v. McGrath,
n503 the road certainly was neither smooth nor clear. When New Deal liberalism
found its way onto the Court, it needed a mechanism by which to implement and
establish this part of its judicial program as the orthodoxy that it is today.
The repeated use of the "standing" metaphor, which has an ontological effect,
provided that mechanism:
New metaphors, like conventional metaphors, can have the power to
define reality. They do this through a coherent network of entailments that
highlight some features of reality and hide others. The acceptance of the
metaphor, which leads us to focus only on those aspects of our experience that
it highlights, forces us to view the entailments of the metaphor as being
Though questions of truth do arise for new metaphors, the more
important questions are those of appropriate action. In most cases, what is at
issue is not the truth or falsity of a metaphor but the perceptions and
inferences that follow from it and the actions that are sanctioned by it. n504
The important question for us, then, is whether the new metaphorically
structured reality that emerged in Coleman and McGrath works. For
[*1459] it is one thing to chart the historical development of a
new constitutional principle and quite another to argue that no new
constitutional principles are permissible because they are not within the
original intent of the Framers. It is one thing to recognize the power of
history in legal thought, as I do: "Just as in a scriptural religion, the most
elaborate and established theological system can be challenged by the call ad
fontes ('back to the sources')...." n505 It is quite another to rest on that
argument, which I do not. n506
A new principle, conceptualization, or metaphor works if the
"perceptions and inferences that follow from it and are sanctioned by it" lead
to "appropriate actions." n507 I believe that the concept of standing does not
work, but rather is obfuscatory. In saying that standing does not work, I mean
something different than the typical claim that standing law is confusing and
seems incoherent. n508 I mean, rather, that standing has disordering effects on
our legal analysis which produce bad decisions on the merits. These disordering
effects stem from the cognitive structure of this particular metaphoric
In Section II, we saw that the "standing" metaphor has specific
entailments that are expressed in standing doctrine. "Standing" is a metaphor
of individualism. The metaphor suggests, moreover, that the individual must
have a particular kind of relationship to the adjudicatory process — a
formal threshold, like standing up to be heard. Standing doctrine defines an
individual's relationship to the adjudicatory process by a private rights model
structured according to two source-path-goal metaphors: one causal, the other
remedial. n509 These metaphors and their underlying schemata exert powerful
influences on standing analysis.
To focus on "standing" is to do more than ask the doctrine's specific
threshold questions. When we as lawyers focus our attention on those questions,
we necessarily suppress aspects of the case that are unavoidably related to the
very issues before us. This is the ontological effect of the metaphor.
Similarly, the use of the source-path-goal schemata of the private rights model
does more than just organize our analysis of the issues in terms of the
elements of the schema. After all, standing law is a self-conscious effort to
limit adjudication to cases that fit the prototype. It therefore structures our
analysis in a way that produces clear reduction-to-prototype effects. Thus, in
organizing the raw facts of a case, the legal system focuses on and treats only
those aspects [*1460] that fit the best examples of the doctrinal
elements. For instance, in Simon v. Eastern Kentucky Welfare Rights
Organization, n510 the Court understood the plaintiff to complain about a
physical injury when, in fact, the briefs and the pleadings were raising a much
larger interest. n511
The practical result of these ontological and reduction-to-prototype
effects is that standing law talks about one thing without talking about the
thing to which it is inextricably attached n512 and, thus, often gets it wrong.
Alternatively, it talks about one thing by talking about another and in the
process garbles both. To demonstrate this, I will discuss four well known
standing cases — Schlesinger v. Reservists Committee to Stop the War, n513
Flast v. Cohen, n514 Valley Forge Christian College v. Americans United for
Separation of Church and State, n515 and Simon v. Eastern Kentucky Welfare
Rights Organization. n516 Each of these public rights cases would better fit a
constituent model than a private rights one. Distortions occur when these cases
are treated in terms of the schemata of the private rights model — much
like forcing a square peg into a round hole. This section illustrates the
confusion between standing and issues central to the merits that is the
inevitable, distorted result. n517
A. Standing: The Who and the What
The dogma of standing doctrine that it is a question of access apart
from the merits of the controversy, n518 is a product of the metaphor's primary
ontological effect. This distinction makes sense in terms of the metaphor
itself: The question is not what you have to say, but whether you can be heard
to say it (that is, are you "standing"?). That latter issue depends on whether
you are in a position to state your claim (do you have "locus standii"?). The
effect is ontological, and not just an application of appropriate analytic
tools, because the effect is at odds with common sense experience. That is, how
can we know whether you should be heard until we allow you to speak? If what
you have to say is powerful and important, why shouldn't we hear what you have
to say? Once you have spoken, it is entirely likely that we might decide that
we [*1461] wanted and needed to hear your statement after all.
Our legal training taught us that the law has its own logic which is
different from common sense. Thus, as lawyers, we can feel comfortable with the
notion that separating standing from the merits makes analytic sense in some
circumstances. There are cases in which it seems appropriate to distinguish the
question whether the defendant has violated the applicable law from whether the
plaintiff is the appropriate person to compel the defendant to stop. But when
we look at these propositions in concrete settings, we find that their
coherence is more apparent than real. What seems to work passably well in a
private rights context is in fact unnecessary. It is distorting when applied to
a public rights context. I will use two variants on a "competitor-standing"
example to clarify what I mean.
Suppose I hold a patent for a new, more efficient, manufacturing process
for high-tech widgets. Provender Enterprises uses my process to manufacture
widgets without first obtaining a license from me. Its competitor, Widget
Wonder, sues to enjoin Provender from violating my patent. It should not matter
that, on the merits, Provender is in violation of my patent (nor, for that
matter, that Widget Wonder is in fact suffering economic loss from the
competition). It is for me to decide whether I am hurt or offended by
Provender's action. If I happen to decide that my continuing relationship with
Provender is more important than the technicalities of a license, Widget Wonder
is (in our system) stuck with my assessment of the relative economic
But, the reason that Widget Wonder cannot sue even though it has
suffered real economic loss has little to do with an inherent problem of
"standing." Widget Wonder can present a justiciable case. It will, however,
lose on the merits because as a matter of policy our legal system does not
afford it a remedy. The patent laws were intended to provide short-term
monopolies to inventors, not to protect unrelated competitors such as Widget
In the private rights context, the concept of standing is entirely
unnecessary. In our legal system, we ordinarily handle the same concerns with
other concepts. For example, we consider whether to recognize an interest that
Widget Wonder has in the enforcement of the patent laws (that is, does it have
a right?). n520 If we were to decide that Widget Wonder has a right, then we
consider whether it matters that I chose [*1462] not to enforce,
rather than to license (that is, is a remedy appropriate?). Ordinarily, these
concepts adequately distinguish between the acceptability of the defendant's
conduct and the entitlement of the particular plaintiff to relief.
The rigid separation of standing from the merits changes from
unnecessary to unhelpful as we shift to the public rights context. Suppose
Widget Wonder believes that the patent office illegally issued the original
patent. It would like to compete with Provender, but is afraid that I might sue
to enforce the patent. It could raise the issue as a defense, or seek a
declaratory judgment against me. n521 But. because Widget Wonder has a
continuing stake in a fast-changing field of technology and is concerned that
this error resulted from systemic problems in the patent bureaucracy, it seeks
instead a declaratory judgment against the patent office.
Modern standing law would grapple with this problem by asking a series
of questions about the relationship of Widget Wonder to the adjudicatory
process: Did it suffer injury-in-fact? Was that injury caused by the patent
office? Would it be redressed by the order sought? Is the injury like that of a
traditional private-rights plaintiff, or one in common with the public at
These questions are separate from the "merits" of the patent office's
conduct; they are threshold questions. But, in a variety of ways, they draw our
attention away from the underlying issues. For example, standing law tells us
to look for direct, concrete injury and then to limit the suit to a question
about the patent office's responsibility for that injury. But if we do, we will
miss altogether Widget Wonder's central concerns. We will miss as well the
public issues raised by the case. Those issues concern the patent laws' broader
role in promoting technological innovation and economic competition, a social
interest that is stifled by rewarding noncontributing technologies with
monopolies. Those issues also concern the variety and effectiveness of the
alternative mechanisms for enforcing those social interests. n522 The focus on
actual injury instead is a reduction-to-prototype effect that obscures these
As with the private patent case, these public issues can be cast as
questions of rights and remedies. Or they can be considered as
[*1463] straightforward matters of policy. In either event, we may
decide that Widget Wonder is not the best party to raise these questions or
that there are other, better mechanisms available to treat them. But to bury
these questions by dealing instead with a question of "standing" — with
the plaintiff's generalized relationship to the judicial process — risks
missing what is most important about the case and the choices that the case
poses. It risks as well some bad choices because of a failure to focus on the
critical questions. Standing doctrine asks about the litigant's stake even as
we resolutely refuse to consider "the stakes." Of course it is obfuscatory.
B. Ontology Redux: A Modern Standing in Court
In Schlesinger v. Reservists Committee to Stop the War, n523 the
plaintiffs sought to force members of Congress out of the Armed Forces Reserve
on the ground that their membership violated the Constitution's incompatibility
clause. n524 The district court had solved the concrete injury conundrum by
arguing that the incompatibility clause was designed to forestall the potential
for injury, like a conflict-of-interest statute. n525 The Court rejected that
analysis because there was no injury-in-fact. n526 In the Court's view, the
lower courts had no business evaluating the meaning and effect of the
incompatibility clause to determine standing: "Standing was thus found by
premature evaluation of the merits of respondents' complaint." n527
The Court's reasoning does not withstand analysis; it can only be
accounted for in terms of the cognitive phenomena of standing's ontological and
reduction-to-prototype effects. Let us examine first the ontological effect of
"standing" in the Court's reasoning. What was accomplished by this fetishistic
fastidiousness about "premature evaluation" of the merits? No obvious process
values were at stake: The problem was not the poverty of the record or the lack
of participation by the adverse parties. Nor did the lower court first decide
that the congressmen had violated the Constitution and then reason backwards in
an unprincipled fashion to find standing. Rather, the court understood "the
primary if not the sole purpose of the bar against Congressmen
[*1464] holding executive office" to be directed at "maintaining
independence among the branches of government...." n528 Accordingly, the court
concluded that "the interest of plaintiffs as citizens is undoubtedly one which
was intended to be protected by the constitutional provision involved."
If the district court was correct that the incompatibility clause
created both an affirmative duty on the respondents and a correlative right in
the citizen-plaintiffs, then the plaintiffs were "in the position of a
traditional Hohfeldian plaintiff" n530 no less than if they had sued upon the
hypothetical conflict-of-interest statute (or if I sued Provender as the holder
of the patent). If the court found that the plaintiffs' claim had merit, then
denial of standing would be preposterous. If the court found that the
plaintiffs' claim had no merit, it could still dispose of the case on a motion
to dismiss. n531 "Premature evaluation" in this context is a consequence of the
ontological effect of the entailment of the "standing" metaphor that suggests a
formal, nonsubstantive threshold. Its consequence, however, is to obscure the
merits and determine them obliquely.
The Court's rejection of the lower court's conflict-of-interest analogy
illustrates the reduction-to-prototype effect of the injury prong of standing
analysis. The Court saw only "injury in the abstract," n532 and treated as
speculative any claim that citizens might actually have been harmed. But the
district court's analysis understood that harm is often unpredictable or
diffuse. An actual injury does not occur every time a driver runs a red light.
But we enact traffic laws both because we know that sometimes there is an
injury and because we want to be able to rely on the signal and cross the
street in safety. We could instead have a rule that running a red light is only
a wrong if someone is hurt, or we could always wait for the pedestrian's
survivors to bring a private suit. But we don't; we make disobedience of
traffic signals a crime because our capacity to conceptualize and project from
everyday experience allows us to plan and to avoid inconvenience and future
We enact conflict-of-interest provisions (or put them in the
Constitution) [*1465] for similar reasons: We consider the issue
important and know that the harms will often be too subtle to perceive
directly. Plainly, the Court confirmed the latter point; it wanted prototypical
injury of some sort.
A footnote to the Court's discussion of the district court's argument
demonstrates the degree to which this reduction-to-prototype effect distorted
the Court's reasoning. The Court acknowledged that Congress could enact a
conflict-of-interest statute "directed at avoiding circumstances of potential,
not actual, impropriety...," and that if it did, "the requisite injury for
standing would be found in an invasion of that right." n533 But what the Court
did and did not conclude from that observation reveals the distorting effects
of its reduction-to-prototype analysis. The Court never asked the obvious
question: If Congress could enact a statute creating such a right, and if that
statute would justify standing, then couldn't the Framers have already done so
when they wrote the incompatibility clause? The Court did not ask this obvious
question because it was clearly caught in the cognitive trompe l'oeil of the
reduction-to-prototype effect: It posited that even if Congress were to pass
such a conflict-of-interest statute, article III would still require "concrete
harm" before a citizen could complain to a court about an actual
conflict-of-interest. n534 In short, the Court concluded (apparently without
realizing it) that Congress had the power only to enact a statute recognizing
the enforceability of fiduciary obligations. A true conflict-of-interest
statute would be constitutionally unenforceable by members of the public
because, by definition, prototypical injury would not yet have occurred. n535
A possible response to my argument that Schlesinger illustrates the
ontological and reduction-to-prototype distortions of standing doctrine would
be to say that Schlesinger simply overemphasizes the separation between
standing and the merits. Flast, after all, observed that "in ruling on
standing, it is both appropriate and necessary to look to the substantive
issues ... to determine whether there is a logical nexus between the status
asserted and the claim sought to be adjudicated." n536 But that would not
provide a meaningful answer to my critique. Flast, after all, is one of the
primary sources of the doctrine that standing is separate from the merits: "The
fundamental aspect of standing is that it focuses on the party seeking to get
his complaint before a federal [*1466] court and not on the issues
he wishes to have adjudicated." n537 In essence, Flast says that "we don't look
at the merits, but we will look at it just a little bit." n538 Moreover, the
Flast position simply digs a deeper analytic hole: There is little in standing
law that is more intractably problematic than the Flast double nexus test. The
test is a wonderful example of how difficult it can be for the Court to talk
about the things it needs to and still stay within the "standing" metaphor: The
contradiction in Flast arises because the Court wants and needs to focus on the
merits of the plaintiff's claim and still treat standing as an entirely
threshold question. It bridges these two incompatible positions by abstracting
the essential elements of the claim as neutral, process oriented "nexuses."
In Flast, a taxpayer challenged, on establishment clause grounds, a
federal statute providing funds to support the teaching of secular subjects in
religious schools. The Court upheld the taxpayer's standing. It both identified
the plaintiff's "personal stake" n539 and distinguished Frothingham by focusing
on "the nexus between the status asserted by the litigant and the claim [s]he
presents...." n540 Like Ms. Frothingham, Ms. Flast challenged a taxing and
spending program. But, unlike Ms. Frothingham, who invoked the tenth amendment,
Ms. Flast sued on the basis of a specific constitutional limitation on the
taxing and spending power. Thus, the Court concluded, Ms. Flast and her
co-plaintiffs had "the necessary stake as taxpayers in the outcome of the
litigation to satisfy Article III requirements." n541
This analysis fails, as Flast's critics have argued, because the double
nexuses "are not in any sense a measurement of any plaintiff's interest in the
outcome of any suit." n542 Indeed, that critique is unanswerable if the double
nexus test is supposed to address how the litigant's status relates to any
generalizable conception of judicial process. But by [*1467]
abandoning this threshold entailment of the "standing" metaphor, as the Court
could not, we can make some sense of the Flast nexuses in case-specific and
Ms. Flast's nexus as taxpayer to her challenge of an exercise of the
taxing and spending power was not significant because it gave her some greater
financial or personal stake in the outcome. Rather, the nexus was significant
because she was asking for nothing more than she was due under the law: On the
merits, she had a first amendment right regardless of the amount at stake. Ms.
Flast was arguing that the establishment clause protected her from a society in
which tax monies would be used for impermissible, religious purposes. n543 The
amount (or lack) of injury to her pocketbook was beside the point; the exaction
of even "three pence" was enough to establish that the government could "force
h[er] to conform to any other establishment." n544 The first amendment exists
to forestall the more direct injury. In other words, the Flast nexus that
purported to answer the threshold question really addressed the merits of the
plaintiff's claim. n545 The Court could only consider her stake by considering
"the stakes." n546
[*1468] If Flast reveals the garbled effect standing has on
the doctrinal discourse, then Valley Forge Christian College v. Americans
United for Separation of Church and State n547 demonstrates the costs —
indeed, the mortal constitutional danger — of such disordered modes of
thought. In Valley Forge, an establishment clause challenge to the donation of
surplus government property to a sectarian college, the Court applied the
double nexus test of Flast to reject the plaintiffs' standing. The Court
reasoned that, unlike the Flast plaintiffs, the plaintiffs in Valley Forge had
not challenged an exercise of the congressional taxing and spending power on
the basis of a specific limitation on that power. Rather, the plaintiffs
challenged an executive action by the Department of Health, Education and
Welfare ("HEW"), authorized by a statute passed pursuant to the property clause
of the Constitution. n548
The Court's literal treatment of the Flast nexus test was just as much a
fiction in Valley Forge as in Flast. The double nexus test could no more
demonstrate that the Valley Forge plaintiffs lacked a sufficient interest in
the subject matter than it could explain why an earlier Court had accorded
"standing" to Ms. Flast. n549 Rather, an entirely different approach to
standing distinguished Flast from Valley Forge. Although Flast ostensibly
established threshold criteria, the Court essentially had looked for legal
injury. The Flast Court found that legal injury in the nexus between the
plaintiffs' claim and the applicable legal principles, that is, by considering
the nature of the plaintiffs' claim on the merits. In Valley Forge, on the
other hand, the Court was literalist and reductionist: "We simply cannot see
that respondents have alleged an injury of any kind, economic or otherwise,
sufficient to confer standing." n550
The court of appeals had tried to use the legal injury approach by
recasting that approach in terms of standing doctrine. The court of appeals
understood the plaintiffs' claim to rest, not on their status as taxpayers, but
rather upon the "'injury in fact' to their shared individuated right to a
government that 'shall make no law respecting [an] establishment of religion,'"
n551 which the court viewed as a "particular and concrete injury" to a
"personal constitutional right." n552 The [*1469] Supreme Court
majority rejected the analysis that would make "the mere allegation of a legal
right sufficient to confer standing," n553 and correctly noted that the lower
court's analysis was inconsistent with the reduction-to-prototype,
injury-in-fact analysis of Schlesinger and Richardson. n554
The majority had an important reason to reject an analysis that focused
on the assertion of a right as sufficient to meet the threshold requirement: To
adopt the analysis would recreate the circularity of the legal interest test
and threaten the integrity of the standing concept. n555 In the public rights
context, in which injury had never been understood as prototypical, there is
only legal right (that is, legal injury). The plaintiff sues because the
government did something the law prohibits. The "injury" is to whatever concern
lies behind the law. Thus, to allow "standing" to members of the public because
they assert bona fide legal rights would be to recreate the public rights
But consider what this conclusion implies about the stakes in modern
standing decisions. A "no-injury" determination is necessarily a "no-right"
determination. Because the "injury" is to the legal interest, the plaintiff's
"stake" is precisely what is at stake on the merits. Once the tool of liberals
to avoid conservative judicial action, the use of standing law as a
jurisdictional bar is now an axe wielded by the conservative Court to cut down
the existence of rights previously unquestioned.
Justice Brennan appreciated part of this argument in his dissent in
Valley Forge, although he failed to grasp its full significance. He noted that,
because [*1470] [a] plaintiff's standing is a jurisdictional matter
for Art. III courts, and thus a "threshold question" ... there is an impulse to
decide difficult questions of substantive law obliquely in the course of
opinions purporting to do nothing more than determine what the Court labels
"standing"; this accounts for the phenomenon of opinions, such as the one
today, that tend merely to obfuscate, rather than inform, our understanding of
the meaning of rights under the law. n556
He argued that "[t]he drafters of the Bill of Rights surely intended
that the particular beneficiaries of their legacy should enjoy rights legally
enforceable in courts of law." n557 But Justice Brennan could not answer the
majority's critique; he could not explain his position in terms of the process
limitations expressed in current doctrine. He instead "[read] cases such as
Frothingham and Flast as decisions on the merits of the taxpayers' claims."
Justice Brennan was correct. The concept of standing necessarily
undermines the concept of rights under law. He could not answer the critique
because he could not step outside the current doctrine's ontological and
reduction-to-prototype effects. We must first accept that the Court's treatment
of standing as jurisdictional is historically unjustified before we are free to
see standing doctrine's inevitable analytic consequences. The Court's standing
doctrine is not just a matter of misdirected impulse. "Standing" is and can
only be a question about the legal rights at stake. Consequently, the Court's
application of standing to reject "jurisdiction" in public rights cases will
always undermine the rights that comprise the core of our current understanding
of the concept of "the rule of law."
The doctrine of standing necessarily undermines our understanding of the
stakes in any given case; the Court focuses on ostensibly neutral,
process-oriented criteria even as it unavoidably decides the merits of the
plaintiff's claim. Perhaps Simon v. Eastern Kentucky Welfare Rights
Organization n559 illustrates best this phenomenon. In Simon, the Court
employed the tripartite injury-in-fact, causation, and redressibility test of
standing n560 to reject the claim by indigents that a change in Internal
Revenue Service ("IRS") regulations concerning hospitals eligible for
[*1471] tax-exempt status under section 501(c)(3) n561 violated the
terms of the statute. The plaintiffs included persons who had been turned away
from hospitals that qualified for charitable status under the new standards.
The plaintiffs sued the Secretary of the Treasury, alleging that the Nixon
Administration's change in the relevant regulations had encouraged the
hospitals to deny service to indigents.
The Court held that the plaintiffs had no standing. It accepted that at
least some of the plaintiffs might have suffered injury-in-fact when denied
access to needed medical services because they were indigent. It held, however,
that this assumed injury was not enough for standing. In the Court's view, the
existence of a case or controversy between the litigants depended on a twofold
analysis: whether the defendants' challenged action caused the injury n562 and
whether a favorable decision was likely to redress the injury. n563 With regard
to each prong of this analysis, the Court found the connection speculative: A
hospital might have decided to deny treatment to indigents for reasons other
than, or even in spite of, the tax implications. In that event, no court order
restoring the IRS ruling (requiring treatment for indigents as a condition of
charitable status) would result in the desired benefits to the plaintiffs
because hospitals might decide to forgo the tax benefits in order to avoid
providing the service.
The plaintiffs countered this reasoning by arguing that the hospital
industry had represented to Congress the importance of such favorable tax
treatment to not-for-profit hospitals. In response, the government argued that
charitable contributions only accounted for four percent of hospital revenues.
The Court interpreted this "conflicting evidence" as support for the
government's position. It held that the plaintiffs had failed to establish that
hospitals receiving tax-exempt status depend on charitable contributions. n564
The Court concluded that "the complaint suggests no substantial likelihood that
victory in this suit would result in respondents' receiving the hospital
treatment they desire." n565
Viewed through the lens of "standing," the Court's analysis seems to
make sense. Remove that lens, however, and the elaborate structure that the
metaphor sustains can be seen to collapse.
The reduction-to-prototype effect of the injury-in-fact requirement for
standing focused the Court on the wrong injury. So did the causation analysis:
"Cause" asks for "effect," and the Court looked for concrete
[*1472] injuries: injuries "in fact." The Court treated the claim
of the Simon plaintiffs in just this way:
The obvious interest of all respondents, to which they claim actual
injury, is that of access to hospital services. In one sense, of course, they
have suffered injury to that interest. The complaint alleges specific occasions
on which each of the individual respondents sought but was denied hospital
services solely due to his indigency.... [S]ome have been denied service. But
injury at the hands of a hospital is insufficient by itself to establish a case
or controversy in the context of this suit, for no hospital is a defendant. The
only defendants are officials of the Department of the Treasury.... n566
There is a subtle and unaccountable shift here from the concept of
"access to services" to that of "denial of services." In the private rights
model, with its source-path-goal schema of causation by the defendant of an
injury "in fact" to the plaintiff, denial of access is only an intermediate
causal step to the ultimate injury, the denial of needed medical care. The new
IRS policy did not cause that injury: that injury resulted from intervening
causes controlled by other (non)parties. Thus, standing was lacking.
But the plaintiffs had presented a different case. They were concerned
about specific instances of inability to obtain care (the prototype). But they
experienced their situation and manifested their concern in terms of their loss
of continuing access to care (the conceptual extension). They claimed that the
charitable treatment of hospitals existed primarily to provide a source of free
care to indigents financed, not directly by the government, but by private
contributors. n567 This claim rested on an assumption about, and an assessment
of, rational responses to tax incentives. In a sense, then, the plaintiffs
claimed to be third party beneficiaries of the tax incentive scheme of the
code. n568 "The relevant injury ... [wa]s, then, injury to this beneficial
interest — as respondents alleged, injury to their 'opportunity and
ability' to receive medical services." n569
By changing the determinants of charitable status, the IRS effectively
reduced the flow of money that hospitals would use for free indigent
[*1473] care. No longer required to provide free services, the
hospitals could instead funnel those funds to subsidize the care given others:
the well-to-do and the insured. As a result, indigent plaintiffs faced a
reduction of available services. This was the "injury" caused by the new IRS
policy. Like any sensible, middle class person, the plaintiffs were concerned
about the diminution of access. Most of us place substantial value on access to
medical care when we need it. We do not wait for the moment of medical need to
inquire into the availability of services. If we are middle class and have the
financial resources, we spend substantial funds to provide ourselves and our
families with assured access: It's called medical insurance. If the insurance
company were to abrogate our policies, we would have standing to sue without
waiting for an actual physical injury to occur, such as a denial of care
because of inability to pay. In the private sphere, the protected interest (the
deprivation of which confers "standing") is called "contract." But the Simon
plaintiffs were caught in a double bind: They had neither a prototypical
contract nor a prototypical injury.
Simon, then, illustrates a twofold reduction-to-prototype effect. The
charitable provisions of the code were a nonprotypical contract in which the
government provided tax benefits, the charitable donors provided money, and the
hospitals provided care to the indigents who were the intended beneficiaries.
n570 When the IRS abrogated the deal, the indigent plaintiffs suffered injury
to a vital, life or death interest. To recognize that the middle class policy
holder has suffered a cognizable injury but to deny to indigents standing to
challenge their parallel reliance on the program of public benefits embedded in
tax policy is, simply, to confer a right on the merits in one case and not the
other. The Court didn't see that because, arising in a setting of public
benefits, the situation did not fit the private law prototypes.
Although Justices Brennan and Marshall disagreed with the majority in
Simon on the standing issue, they too missed the central issue of the case.
They concurred in the judgment because, to them, the case was not sufficiently
ripe or concrete. It was not ripe because the new IRS ruling did not specify
all of the circumstances and factors that would determine its application to
other hospitals. The case was not concrete because the plaintiffs had not shown
that the specific hospitals which [*1474] provided their
"opportunity and ability" to obtain free care were in the class of hospitals
affected by the ruling.
If this reasoning sounds suspiciously like the majority's causation
analysis, it is because the concurrence applied the same causal
source-path-goal metaphor to a different goal. Justices Brennan and Marshall
were no less constrained by the private rights model than was the majority.
They also missed the public rights thrust of the plaintiffs' case.
The original Revenue Ruling excluded from the definition of "charitable"
hospitals that did not provide some free care to indigents. n571 The new ruling
stated explicitly that the promotion of the health of the community was
inherently charitable "even though the class of beneficiaries ... does not
include ... indigent members of the community." n572 The indigent plaintiffs
knew that this policy revision would surely affect some of them. They sued to
protect those victims, whomever they might be. But the Court wanted
prototypical sources, identifiable victims with identifiable injuries, and
prototypical causation. In applying the source-path-goal metaphor of the
private rights model, the Court wanted the plaintiffs to show a shorter and
clearer path and not the "attenuated line of causation" n573 of a public
In the end, all of the members of the Court simply missed the point
because the reductionist analysis of current doctrine prevented them from
seeing the normative question — the merits — that lay behind the
case. Nevertheless, the decision amounted to the adverse normative
determination that both the majority and the concurrence purported to
Simon also reveals the distorting results of the ontological effect of
the "standing" metaphor. The Court treated the question of standing as
addressing the sufficiency of the allegations of the complaint. n574 Standing
purports to be a threshold question of justiciability; the logic of the
metaphor therefore argues that standing should be judged on the basis of the
pleadings. But the Court did not really do that. It first argued that the
complaint did not establish the requisite causal connection between the
defendant's action and the injury alleged. The Court then relied on the
conflicting "evidence" and rejected the plaintiffs' case on causation as
"purely speculative." n575
Ordinarily, the allegations of a complaint don't "establish" anything;
they merely assert what the plaintiff needs and intends to prove
[*1475] at trial. n576 Ordinarily, a defendant's motion for summary
judgment is the procedural device that tests whether the plaintiffs can
establish their factual allegations. n577 But, in a sense, these criticisms are
beside the point: The Court was deliberately ambiguous about whether the fatal
flaw was a problem of pleading or a problem of proof. n578 The "standing"
metaphor necessarily produces this ambiguity: If causation is part of the
jurisdictional prerequisite of the standing test, causation should ordinarily
be ascertainable from the complaint. To admit otherwise would throw the whole
endeavor into question. If the plaintiffs lost in Simon because they could not
prove that the IRS caused their injuries, then they lost not because they had
no standing but because the IRS was not responsible for their injuries. Admit
that conclusion and one has admitted that to ask about causation is to ask
about something else entirely: the merits of a private law dispute.
The Court's causation analysis necessarily suggests that, if we adhere
to the private rights model, the flaw in the plaintiffs' case was on the
merits. The essence of the remedial source-path-goal metaphor is proof of the
causal source-path-goal metaphor: that the defendant's actions caused the
alleged injury. n579 Consider a familiar tort paradigm. A [*1476]
woman is waiting on line to board a bus. She stands at the rear of one of those
aluminum and plexiglass bus shelters that line some cities' streets. A man
holding a plain, wrapped package boards the bus. The driver negligently takes
his foot off the brake. The bus lurches. The man falls. The package, containing
fireworks, hits the ground and explodes. The bus shelter collapses and injures
the woman. If this modern Ms. Palsgraf n580 hopes to recover from the bus
company, she will at least have to prove that the shelter collapsed as a result
of the explosion and not as an independent result of defects in its
manufacture. If she wants to recover from the more solvent manufacturer of the
shelter, she will have to show that there were defects in its manufacture
— that is, that a well designed and constructed shelter would have
withstood the fireworks display. If she fails to prove causation in either
case, she loses not because she had no standing but rather because she failed
to establish the elements of the causal source-path-goal metaphor: she had no
case on the merits. The court exists to make this very determination.
The degree of causation required for liability is the fundamental
question of the suit. In many cases, causation is unproblematic because the
source is clear and the path is short and direct: I accelerate too fast and my
car hits your car. But in many cases the source is remote and the path is long.
Then we have to ask for the proximate cause: "What we do mean by the word
'proximate' is, that, because of convenience, of public policy, of a rough
sense of justice, the law arbitrarily declines to trace a series of events
beyond a certain point." n581
Problems of multiple, indirect causation are the most difficult for the
source-path-goal metaphor of causation because there are many sources and
criss-crossing paths. n582 As the causal paths multiply and cross one another,
the prototype of the causal source-path-goal metaphor fails to
[*1477] provide much structure and we get all the familiar
distortions of proximate cause analysis. One way we try to find our way out of
the maze is to ask whether one of the defendants was at least close enough to
see it coming: Was the injury foreseeable? n583 Was the victim amongst the
foreseeable beneficiaries of the duties we expect of the manufacturer? n584 Or,
we might accept the limits of the source-path-goal schema and make a naked
normative judgment. n585 But even if the path were long and the proof slim, we
would not (in the language of Simon) reject "standing" because the causal
connection was "speculative." n586 The plaintiff would have "standing" to try
to establish the attenuated causal source-path-goal metaphor and to argue the
normative questions regarding the scope of the duty.
Simon pretermitted the ordinary judicial process by making these merits
determinations on the pleadings as a threshold matter. The Court simply
declined to trace the causal path. It could just as well have said any of the
things that courts usually say in deciding the merits of similar tort cases:
that the IRS ruling was not the "proximate cause" because hospital policy
determinations independent of the tax consequences may have been the "real"
cause of the denial of service; that it was not "foreseeable" that hospitals
would gauge their provision of free services for indigents in response to
changes in tax incentives (Congress' attempt to influence hospital behavior in
just this way, notwithstanding); that, when the IRS considered restructuring
the tax incentives, it owed no duty to, and was free to ignore the potential
effects on, indigent patients.
If standing law does no more (and no less) for us as a heuristic device
than does proximate cause analysis in tort law, we should be little surprised.
And if it serves merely to recreate the same sets of questions that we asked in
the context of private tort law, neither should we be surprised at that result.
The congruence between standing law and tort law is as predictable as is the
facial characteristics of an individual and his or her clone. Standing law and
tort law share the same animating genes — that is, the same conceptual
But there is one critical difference. Standing is a threshold issue. It
asks the same questions, but at the beginning of the lawsuit. Proximate cause
cases at least have the benefit of a completed exploration of factual
complexities and a full development of their analytic and normative
consequences. Constitutional standing doctrine, on the other hand, asks the
plaintiff to unravel all of these intricacies — the multiple sources and
the criss-crossing paths — before the record is developed. It
[*1478] is no wonder that the Court seems consistently to require
prototypical injury and prototypical causation: That's all one could possibly
see at that point. And, it is no wonder that this truncated process produces
unsatisfactory opinions and bad decisions.
Standing law and tort law also share the same individualistic
entailments of the causal source-path-goal metaphor. Consider the Palsgraf
paradigm. The same conceptualizations that separate current standing law and
the older public rights model also divide Judge Cardozo's opinion for the
majority from Judge Andrews's dissent. Judge Cardozo argued that Ms. Palsgraf
could not recover because she had suffered no legal wrong (no source). n587
Judge Andrews's normative approach was more catholic:
Should we drive down Broadway at a reckless speed, we are negligent
whether we strike an approaching car or miss it by an inch. The act itself is
wrongful. It is a wrong not only to those who happen to be within the radius of
danger but to all who might have been there — a wrong to the public at
Judge Andrews did not insist on a source-path-goal metaphor that
personalized the issue. He took a regulatory approach that understood the basic
unity of the community's interest: Negligent conduct endangers many different
parts of the whole; it is "a wrong to the public at large" regardless of which
individual part is injured. This schism between the individualistic, "personal"
approach to rights and the regulatory, communal sense of law persists in
current standing law.
Standing law reflects the features of tort law because, like the clone,
it is an unmediated outgrowth of the original. As we have seen, standing law
developed directly from the private rights model. Standing doctrine merely
teased out the essence of the equity version of that model. n589 Thus
distilled, it crystallized that essence as constitutional precipitates
consisting of the same elements. The result is therefore the same. Only the
discourse is different, and obfuscatory.
VI. RECONSTITUTING STANDING
Before it can adopt a positive voice, freedom requires an effort at
[*1479] What would reconceptualized models of standing look
like? What attitudes should shape participation in a legal system not dominated
by the current metaphor? I suggest that, if we are to reconstitute standing
doctrine in the public law context, we should choose rules that are
reconstitutive rather than alienating. We could start with five
First, the Framers did not write a Constitution for, and did not
envision a society consisting of, "a collection of portable little spheres of
interest in which you and I and [others] plunge about like swimmers in so many
diving bells." n591 Their society was not organized that way; modern society
isn't either. Each of us lives within interactive webs of interests. Each of us
belongs to numerous communities: the part-whole configurations that, like
concentric rings, comprise the varying relationships of our lives: We are
husbands and wives, parents and children, employers and employees,
professionals and clients, as well as members of extended families, unions,
professional organizations, political parties, and other citizenship
Second, we ordinarily expect those who share our interests and our trust
— whether intimate, professional, or political — to speak up for us.
We feel betrayed when our family, friends, or professional colleagues do not
stand up for us. The political premise of our democracy is that it is
representative in character. n592 This communitarian assumption is no less
characteristic of our practice of judicial review, in which the Court decides
rules and principles that govern us all and not just the litigants before it.
n593 That universality is one reason for the continued validity
[*1480] of de Tocqueville's classic observation: "Scarcely any
political question arises in the United States that is not resolved sooner or
later, into a judicial question." n594
Third, society establishes rights in order to protect particular
interests through the medium of laws. The prototypical right is effectuated by
a remedial scheme that involves coercive judicial remedies obtained by the
injured individual. But not all rights fit a single mold. Sometimes the
interests that society chooses to protect are shared by a community. Sometimes
the correlative enforcement mechanism relies on the normative sanctions that
can be brought to bear upon the wrongdoer, such as impeachment, political
defeat, or public opprobrium. But all of these normative sanctions depend on
access to some public forum. Public rights require a public forum, even if only
to require the court to be sure that other kinds of remedies are available and
Fourth, the problems that arise from representation are only
instrumental — that is, only practical problems. Standing law, premised as
it is on individualism, posits otherwise, that there is a fundamental,
normative requirement that rights are personal in nature. But there is nothing
inherently wrong with allowing A to represent the interests of B. To the
contrary, there are occasions when such representation is desirable or
necessary. There are risks to representation, to be sure: The representative
may act against or in ways inimical to the represented party's real interests.
Accordingly, we make choices or impose limits. We weigh the instrumental
benefits as well as the costs. We require representation at certain times n596
and prohibit it at others. n597 We impose fiduciary obligations or carve
structural limitations. n598 But these are instrumental considerations that
present choices to be made, not [*1481] moral evils pretermitted by
a priori philosophic or constitutional limitations.
Fifth, any particular regime governing participation imposes
institutional costs and benefits. The current standing regime obfuscates the
actual costs and exaggerates the benefits. n599 The institutional constraints
that we should treat as embodied in a "case or controversy" notion are
implicated much more rarely than is suggested by current doctrine. This
argument involves two elements: (1) that courts are better suited, more
necessary, and more frequently employed as fora for debate over and enforcement
of societal norms than the prevailing constitutional wisdom suggests; and (2)
that the threat to democratic values stems from the loss of democratic control
over decisions about access to and involvement in that judicial process as much
as from the courts' normative work. Current standing law obfuscates the
instrumental value of the rule of law in a functioning democratic system and
the imperialism of an unaccountable judiciary that acts as both lawgiver and
I explore these principles in the four subsections that follow. In the
first, I explore, in the context of recent cases, the ways that the Court has
had to manipulate its own doctrine in order to permit representative public
litigation inconsistent with its individualistic ideology of standing. In the
second subsection, I explain why a multiplicity of metaphors better structures
meaningful responses to a multidimensional reality. I develop the advantages of
a system that is not restricted to a single model or metaphor. I illustrate
this point with alternative models and metaphors that do a better job of
recognizing rights and providing meaningful remedies in a society characterized
by interdependence. In the third subsection, I consider how the Court's
manipulation of these metaphors undermines self-governance. In the final
subsection, I suggest how alternative models might better enable us to
harmonize the processes of adjudication with notions of democratic governance.
A. Testing and Transcending the Paradigm
One measure of the individualistic paradigm of modern standing law is
the Court's success in employing this paradigm to police the
[*1482] boundaries of adjudication consistent with society's felt
needs. The Court has found it necessary to distort the paradigm —
sometimes beyond recognition — in order meaningfully to accommodate
societal needs for adjudication in situations in which individualism simply
fails to capture the more complex dynamics of lived, social experience. This
discussion will demonstrate again that the standing paradigm does not work. The
primary purpose of this discussion, however, is to discover what is needed to
In Trafficante v. Metropolitan Life Insurance Company, n601 one white
and one black person sued under the Federal Fair Housing Act n602 as "persons
aggrieved" by their landlord's refusal to rent to other, nonwhite applicants.
The lower federal courts held that the plaintiffs were not entitled to sue
under the Act. n603 The Supreme Court reversed. The majority found standing
based on the allegation that the "injury to existing tenants by exclusion of
minority persons from the apartment complex is the loss of important benefits
from interracial association." n604 This characterization restructured the
issue in individualistic terms: The plaintiffs suffered a loss in "the very
quality of their daily lives." n605 But the Court did not stop there. It also
considered the congressional grant of a right to sue on two alternative bases
not rooted in the plaintiffs' special injury. It considered that the scheme
created by the Act relied heavily, if not exclusively, on private attorneys
general for enforcement. n606 And it quoted Senator Javits' observation that
the injury of housing discrimination is to "the whole community." n607
No part of the Court's rationale fits the paradigm of standing. After
all, the Act prohibited discrimination, not the enforced segregation of whites.
The Court's reformulation emphasized the interests of collateral beneficiaries
over those of the persons who were actually discriminated against, in contrast
to its usual treatment of the right to be free of discrimination as a personal
right. n608 Moreover, even the personal right the Court did construct was
premised on the benefits of community. The Court's opinion moved inexorably,
therefore, to the broader implications of the congressional grant of
representational standing to vindicate the concerns of the community.
Nevertheless, Trafficante's treatment of these issues has remained
characteristic. Constrained by the individualist ideology, the Court has
[*1483] continued to find novel, "personal," congressionally
created rights in order to solve problematic cases of representative standing.
And, at times, this focus upon personal rights has resulted in anomalous
holdings. In a subsequent housing discrimination case, Havens Realty Corp. v.
Coleman, n609 the Court held that, of two otherwise similarly situated
surrogates, only the black plaintiff had standing to pursue a claim intended to
benefit third parties subject to discrimination.
"Steering" by real estate and rental agents is a common practice of
racial exclusion. Typically, real estate agents lie to black applicants for
apartments or homes in traditionally white neighborhoods, telling them that an
advertised unit is no longer available. The agents then take the black
applicants to see an apartment or a house in a black or transitional
neighborhood. To prohibit this practice, section 804(d) of the Act makes it
illegal "[t]o represent to any person because of race, color, religion, sex, or
national origin that any dwelling is not available ... when such dwelling is in
fact so available...." n610 But genuine housing applicants who are victims of
this practice rarely know when they have been lied to. Accordingly, the only
meaningful way to enforce the Act is to employ surrogate "testers": people who
pose as renters or purchasers. White and black testers separately answer an
advertisement for the same apartment or home in a white neighborhood. If the
black is told that the unit has already been sold or rented and the white is
shown the unit, then a violation of the Act has been proved. But, because
neither of the testers has an actual interest in the unit, there is a question
whether either has standing. That is, neither has suffered an
In Havens Realty, the Court upheld the standing of the black tester but
denied standing to the white tester. n611 The Court started from the premise
that Congress has the power to extend standing "to the full limits of Art. III"
n612 and that, if Congress does so, "the courts ... lack the authority to
create prudential barriers...." n613 Accordingly, "the Art. III minima of
injury in fact" was "the sole requirement for standing." n614 The Court found
that injury in the deprivation of the "enforceable right to truthful
information" created by section 804(d). n615 Thus, only the black tester had
standing because only he had been given false information. n616 Yet the white
tester had the same relationship to the case and the same purely
representational relationship to the real beneficiaries of the statute (seekers
of housing who encounter [*1484] discrimination) as did the black
tester. The black and the white tester were as alike as two peas in a
representational pod, but the Court managed to discriminate between them
Singleton v. Wulff n617 even better illustrates the Court's continuing
struggle with the notion of group rights in the context of an individualist
ideology. In Singleton, doctors challenged the statutory exclusion of most
abortions from coverage under Medicaid. n618 A unanimous Court agreed that the
doctors had standing because they had suffered injury-in-fact when they were
denied the only source of compensation for medical services performed for
indigents. n619 The Court split, however, on the question of jus tertii:
whether the doctors could raise their patients' constitutional right to obtain
an abortion. Justice Blackmun's plurality opinion upheld third-party standing.
n620 The plurality relied on purely instrumentalist considerations that made
representation necessary and reliable. First, it noted the inextricable
connection between the third party's enjoyment of her right and the course of
conduct that the doctor-litigant sought to pursue, n621 the confidential n622
and intimate n623 nature of the doctor/patient relationship, and the resulting
fact that the doctors were "fully, or very nearly, as effective a proponent of
the right as the" patient. n624 Second, the plurality considered the practical
obstacles to the woman's assertion of her own rights, including the loss of
privacy entailed in a decision to litigate the abortion claim publicly and the
imminent mootness of her claim. n625
But, writing for the dissenters, Justice Powell argued that the
plurality had inverted "the Court's previous position that the relationship
between litigant and rightholder was subordinate in importance to 'the impact
of the litigation on the third-party interests.'" n626 In his view, the Court's
prior decisions demanded greater practical impediments to justify third-party
standing; he also argued that the plurality had overstated the obstacles to the
indigent women's assertion of their own rights. n627 The problem of potential
mootness was refuted by the "capable [*1485] of repetition yet
evading review" doctrine exemplified by Roe v. Wade. n628 The ability of the
litigant to sue under a pseudonym mooted the privacy point. n629 Justice Powell
therefore accounted for the inversion as a concession of the weakness of the
plurality's instrumentalist arguments for third-party standing. Moreover,
because he saw the question as only instrumental, Justice Powell argued that
the nature of the relationship was only a secondary safeguard to assure
adequate representation. n630 According to Justice Powell's view,
representation was adequate only when the state directly interfered with the
doctor/patient relationship, as when it criminalized the underlying medical
procedure. Here, in contrast, "nothing more [wa]s at stake than remuneration
for professional services." n631
Despite the fact that the plurality retained the instrumentalist focus
on adequate representation, Singleton is significant far beyond the refinements
of doctrine that seem to separate the plurality from the dissenters.
Singleton's treatment of the relative importance of the nature of the
relationship and of the difficulty of the obstacles, and its inversion of the
criteria, suggest the possibility of two fundamental shifts in the ideology of
First, reliance on the instrumentalist necessity of representation as
the only justification for third-party standing gives way to a concept of
shared interests or relational standing. This is the true import of the
plurality's discussion of the confidential and intimate nature of the
relationship. The doctor/patient relationship — particularly with respect
to a highly personal decision like contraception or abortion "in which the
physician is intimately involved" n633 — is a paradigmatic relationship of
trust. In this relationship of reliance and vulnerability, social mores already
impose — or, at least, expect — duties of confidentiality, loyalty,
and fiduciary obligation. This special relationship makes Singleton the easy
case compared to those of self-appointed contraception advocates n634 or buyers
and sellers of real property n635 relied upon by both the plurality and the
dissent. In contrast, the dissent's blighted vision saw only an extension from
one form of third-party self-interest (avoidance [*1486] of
criminal sanction) to another, weaker form (mere pecuniary gain); from a direct
prohibition on the relationship, to a mere economic inconvenience. n636
Second, Singleton suggests a fundamental shift away from an
understanding of representation as a grudging exception to an appreciation of
its ubiquity. Contrary to Justice Powell's critique, Justice Blackmun's
plurality opinion openly acknowledged the pliability of the "obstacles" to the
women's own pursuit of their cases. It even suggested another available
exception to mootness (in addition to the example of Roe v. Wade): "a class ...
whose fluid membership always included some women with live claims." n637 To
the plurality, these arguments counseled in favor, rather than against,
third-party standing because both doctrines already implied the acceptability
and normalcy of third-party representation: "[I]f the assertion of the right is
to be 'representative' to such an extent anyway, there seems little loss...."
The Court continued this debate four years later in United States Parole
Commission v. Geraghty n639 and Deposit Guaranty National Bank v. Roper. n640
In these cases, plaintiffs who had failed to obtain class certification
continued to pursue their cases even after their individual claims were
resolved. In Geraghty, the named plaintiff's case was moot by the time an
appeal from final judgment could test the class issue. n641 In Roper, the named
plaintiffs' individual claims had been subject to an offer of judgment for the
full amount. The district court entered judgment in favor of the plaintiffs,
who nevertheless appealed the denial of class certification. n642
In each case, while the majority opinion talked in terms of procedural
doctrines such as finality of judgments, n643 relation back, n644 and the
doctrine of mootness-avoidance known as "capable of repetition yet
[*1487] evading review," n645 the dissent found no "case or
controversy." But the majority clearly stumbled on the article III issue. It
recounted the individualist dogma of standing and struggled to fit the case to
that mold: "The imperatives of a dispute capable of judicial resolution are
sharply presented issues in a concrete factual setting and self-interested
parties vigorously advocating opposing positions." n646 In both Geraghty and
Roper, the Court could avoid dissonance only by using the Trafficante sleight
of hand. That is, the Court found that Congress had created a personal right to
obtain class status, to be invoked by the putative class representative, when
it passed Rule 23 of the Federal Rules of Civil Procedure. n647 Once that right
was recognized, the injury-in-fact and personal stake conundra could be solved:
"The proposed representative retains a 'personal stake' in obtaining class
certification sufficient to assure that Art. III values are not undermined."
This "personal stake" in serving as a class representative is a fiction
just as great as those invented by the Court in Trafficante and Havens Realty.
The plaintiffs and putative class representatives in both Geraghty and Roper
had exhausted all of their self-interest. n649 As in Trafficante or Havens
Realty, the plaintiffs were acting, not for themselves, but for
[*1488] other, absent victims of the primary illegality. But the
reformulated "personal stake" of the representative was an even greater fiction
in Geraghty and Roper. For the Court derived the "personal right" to serve as a
class representative not from a substantive statute like the Fair Housing Act,
but from Rule 23, a procedural rule. And, that "personal right" was ephemeral
in the extreme: Everyone agreed that once the appeal had been taken and the
class certified, the "proposed class representative" would be dismissed on
typicality grounds. n650
To defend its treatment of justiciability under article III, the
Geraghty majority abandoned any notion of formal restraint, such as that
usually ascribed to standing. Instead, it characterized justiciability doctrine
as "flexible," n651 "uncertain and shifting," n652 "riddled with exceptions,"
n653 and highly pragmatic. n654 Indeed, the Geraghty majority conceded partial,
The dissent is correct that once exceptions are made to the
formalistic interpretation of Art. III, principled distinctions and bright
lines become more difficult to draw. We do not attempt to predict how far down
the road the Court eventually will go toward premising jurisdiction "upon the
bare existence of a sharply presented issue in a concrete and vigorously argued
Thus, cases like Geraghty do not fit the doctrinal categories of
standing and the presumed exclusivity of the private rights model. These cases
test the paradigm and find it wanting. To make the model meet society's needs,
the Court is forced to indulge in fictions.
So what? If the Court can do it all the same, what does it matter? It
matters. It matters because the use of fictions produces a body of case law
that is thrice removed from reality. First, the Court ascribes to Congress the
creation of "rights" that, doubtless, Congress never considered. The doctrine
produces a series of anomalies, not the least of which is that Congress has the
power to create rights exactly where the Framers did not. Thus, cases like
Trafficante, Havens Realty, and Geraghty recognize new rights, "the invasion of
which creates standing"; n656 yet the Court rejects precisely that syllogism in
cases like Valley Forge, n657 [*1489] Schlesinger, n658 and
Second, it matters if the Court uses fictions to avoid existing standing
doctrine because such fictions focus the rhetoric and, consequently, the
Court's attention on the wrong people and the wrong things. That is, our
ingenuity is engaged in finding "rights" granted to third-party surrogates when
we should be concentrating on the problems of the real victims of the
prohibited practice. We inevitably undervalue the suffering of these victims
and, as a result, are less able adequately to respond to that suffering. n660
For example, focusing on the black tester's personal right to truthful
information, rather than on his or her capacity as representative of the actual
victims, limits the remedies available in a tester's suit to those coextensive
with the newly-defined "right." Thus, damages will be available to remedy the
provision of false information. But, under City of Los Angeles v. Lyons, n661
the tester will not have standing to obtain an injunction against the
In Lyons, the Court held that Adolph Lyons, a victim of a police
chokehold, could seek only personal damages. The Court held that he did not
have standing to enjoin the practice because, in its view, it was speculative
that Mr. Lyons would again be subjected to the chokehold. But if the Court
viewed the tester — or Adolph Lyons — as representative of the legal
interests of absent victims, then these plaintiffs' "standing" to obtain
injunctive relief on behalf of the absent victims would follow logically. Once
again, the putatively jurisdictional question of "standing" is in fact several
questions: Who has rights? What are they? And how can they best be
Third, standing law distorts the very issues and values that it purports
to vindicate. Standing law is frequently defended as assuring adequate
representation to insure vigorous advocacy or protecting the autonomy and
self-determination of the interested parties. n662 In many cases, however,
standing law does just the opposite. In Burstyn v. Miami Beach, n663 several
plaintiffs joined in a suit challenging a local zoning ordinance that limited
the number of Adult Congregate Living Facilities ("ACLFs"), community-based
alternatives to nursing homes or [*1490] hospital care for elderly
persons. The plaintiffs claimed that there were many more elderly persons than
there were facilities to serve their needs. The case focused on two buildings
that the owners wanted to convert to ACLFs. The plaintiffs included the state
ombudsman council, two senior citizen groups, and one notorious ACLF proprietor
who had been cited numerous times for abuses and violations by various state
agencies. The district court held that only the proprietor had standing. The
district court faithfully tracked the Court's holding in Warth v. Seldin, n664
a case concerning a racial challenge to exclusionary zoning practices.
The significance of cases like Trafficante, Singleton, and Geraghty is
not that they test the individualist paradigm of standing, but that they
transcend it. These cases covertly reestablish the part-whole and link schemata
that typified the public rights model. Trafficante concerned the legal
recognition of interests in community; Singleton concerned relational
interests; Geraghty concerned the instrumental value of representation.
Each of these cases can be better reconstructed in terms of one of the
historical public rights models. Trafficante and Havens Realty, for example,
become simple cases of representative, private attorney general standing, with
congressional authorization to sue applied to all persons with relevant
information. These cases become no more difficult than Adams, qui tam v. Woods,
n665 in which Congress authorized informers' suits against slave traders.
Geraghty and Lyons become no more difficult than County Commissioners v. People
ex rel. Metz n666 or Union Pacific Railroad v. Hall, n667 in which the courts
held that members of the public could sue in mandamus when "the duty they seek
to enforce by the writ is a duty to the public generally." n668
The public rights approach was referred to in Singleton, n669 hinted at
(but not relied on) in Geraghty, n670 and all but adopted in Justice Stevens'
concurring opinion in Roper. He put it plainly: "[T]he absent members of the
class should be considered parties to the case or controversy...." n671 In each
of these cases — Trafficante, Havens Realty, Geraghty, and
[*1491] Lyons — the real plaintiffs were the members of some
The area in which the courts have come closest to achieving this
reconstituted public rights model is the one in which the communal stakes are
most obvious: the environmental cases. This is the answer to the
particularization conundrum raised in the introduction. It is not that some
rights are "personal" and others "group" rights. Rather, it is that the courts
can most easily see the widely shared "personal" stake in fresh air, n672 clean
parks, n673 and unspoiled wilderness areas n674 because these are things we
experience directly as individuals even as we share them in common with
In all of these cases, there is a "case or controversy" because there is
a real, adversary issue presented in a concrete factual setting turning on
questions of law. In each case, the nominal plaintiff was in fact acting for
the group in a representative capacity without regard to his or her
self-interest. Justice Blackmun's observation in Singleton concerning the
normalcy of such representation is equally apt here: Since the assertion of
rights is so often representative in our system "there seems [to be] little
loss...." n675 There may, in fact, be substantial gain.
B. Meaning and Multiplicity of Metaphors
We have seen how metaphors and models are central to human cognitive
[*1492] processes and how they operate to structure thought. n676
We have seen, as well, how they sometimes disorder our legal thinking in
surprising ways. n677 In this section, we consider again the role of metaphor
in language and thought in order to further the project of reconstruction. We
will examine three important aspects of the operation of metaphor in thought.
We will explore why it is always necessary to employ multiple metaphors to
establish meaning, describe the variety of types of metaphor, and inspect the
connection between purpose and metaphor. n678
Suppose that we are standing by the ocean on a windless day. We might
describe the sea as calm or flat. If it were a windy day, we might remark on
the whitecaps or say that the sea was hoary or that the waves were rushing
toward the shore. Each of these descriptions employs metaphor, although some so
common we no longer perceive them as such. Each metaphor tells us something
about the ocean. At the same time, each metaphor is partial and incomplete; it
hides or negates other truths about the ocean. Even when a particular metaphor
may be appropriate, it nevertheless hides other important aspects of the sea.
The waves may appear to rush toward the shore and may, as any surfer knows,
propel objects in that direction. But we also know — as we watch a
discarded paper cup bob in place — that the water actually moves in place
in a circular motion. The surface of the sea may appear flat, but beneath the
surface is a reality of valleys, ridges, trenches, and the like. While the
surface may appear calm, there also may be a deadly current underneath. We
would use another metaphor to describe that part of the sea's reality: We call
it the undertow — as if some underwater tug had fastened a tow line about
our ankles with which to drag us out to sea.
We experience reality like the ocean. We structure our perception of it
by means of metaphors, models, concepts, and categories. Each metaphor takes a
slice of reality and compares that cross section with some aspect of our
physical experience. These basic orientational n679 and ontological metaphors
n680 are then combined and recombined to [*1493] form more
descriptive structural metaphors. n681 These in turn are used to form cognitive
models or concepts. n682 We use multiple metaphors — repeated cross
sections or multiple snapshots — in order to capture more of what we
experience and construct a more useful picture of the reality around us. We
construct complex models of various sorts and use metaphoric extensions to
reason about the world. This layering of metaphors and of models enables us to
Part of the process of achieving meaning stems from the varieties of
metaphor. The two metaphors invoked above — the ocean is flat and the
ocean is calm — are of differential usefulness in structuring the concept
"Ocean." The first metaphor, premised on the basic, ontological object
metaphor, is of limited usefulness: The ocean can be flat because it has a
surface; it must have a bottom and edges. On the other hand, the second
metaphor — the ocean is calm — is premised on the much richer
personification metaphor. Thus, the ocean can be calm, treacherous,
unforgiving, moody, a demanding mistress, or a stern taskmaster; the tide can
come in and go out. n683 Similarly, the sea can have the specific attributes of
personhood of the English working class sailor, as in the personification
metaphor: Davy Jones' locker.
Metaphors based on simple physical concepts — up-down, in-out,
object, substance, etc. — which are as basic as anything in our conceptual
system and without which we could not function in the world — could not
reason or communicate — are not themselves very rich. To say that
something is viewed as a container object with an in-out orientation does not
say very much about it. But, as ... with the mind is a machine metaphor and the
various personification metaphors, we can elaborate spatialization metaphors in
much more specific terms. This allows us not only to elaborate a concept (like
the mind) in considerable detail but also to find appropriate means for
highlighting some aspects of it and hiding others. Structural metaphors (such
as rational argument is war) provide the richest source of such elaboration.
Structural metaphors allow us to do much more than just orient concepts, refer
to them, or quantify them, as we do with simple orientational and ontological
metaphors; they allow us, in addition, to use one highly structured and clearly
delineated concept to structure another. n684
The more important the concept the more likely that the concept is
structured in terms of many different and richer, structural metaphors. Lakoff
and Johnson identify at least five standard metaphors that our culture uses to
understand and describe the concept "love," n685 and at [*1494]
least eleven for the concept "idea." n686 In the latter case, each of these
structural metaphors is based on one of two more basic ontological metaphors,
ideas are objects or ideas are living organisms. Some examples of standard
metaphors for the concept of "idea" follow.
Ideas (theories) are buildings: The argument is shaky; it needs more
support; these are the building blocks of my theory.
Ideas are food: I can't swallow that metaphor theory; let me chew on
it a while; he spits out ideas.
Ideas are people: That's her brainchild; he breathed new life into
Ideas are plants: The roots of this theory lie in the work of Sapir
and Whorf; that idea has borne fruit; let me plant this thought.
We establish truth by testing metaphors and their combinations against
our experience for functionality. Truth (or relative objectivity) is both
contingent on our metaphors and provisional on our experience. Since individual
metaphors are inherently limiting, we modify them, reject them, or supplement
them in order to achieve a better, more effective "fit" in our interaction with
The value of this metaphoric theory of meaning is that it provides an
elegant explanation of some otherwise unaccountable phenomenon. In the context
of the law of standing, this theory can help bring a measure of coherence to
otherwise unanswerable doctrinal difficulties. By examining the role that the
standard cultural metaphors play in shaping our thinking, we can answer the
injury conundrum raised in the introduction. n689 And [*1495] by
examining the relationship between purpose and the use of multiple models, we
can see both why standing law is naturally dysfunctional and how we could begin
to reconstruct it.
Two of the related conundra of standing law that we have examined are
the effects of the injury-in-fact analysis and the scope of congressional power
to create standing. In Schlesinger, n690 the Court struggled with the notion
that a conflict of interest, that is, the threat of a breach of fiduciary duty,
could constitute an injury-in-fact. n691 The Court suggested that Congress
could enact a conflict of interest statute, but that standing to enforce such a
statute would nevertheless have to be premised on actual injury. n692 In
Richardson, plaintiffs could not enforce a constitutional provision granting a
right to public information because no one had suffered specialized injury.
n693 But in Havens Realty, a similar congressional grant of a right to accurate
information did serve as the basis of standing because the deprivation of that
right was the injury-in-fact. n694
This conflict between the dicta in Schlesinger, in one case, and between
the holdings in Richardson and Havens Realty, in another, suggests two problems
that only the concept of metaphors and models can explain. First, why is it
that the right to information granted by the Fair Housing Act ("FHA") n695 or
the Freedom of Information Act ("FOIA"), n696 for example, can give rise to
standing, while the same right granted by the statement and account clause
cannot? The notion of "standing" suggests that the answer lies in the metaphor
of individualism. The FHA and the FOIA directly address individual persons who
ask for information. n697 The statement and account clause, on the other hand,
delineates what Congress may do. The connection between that
[*1496] clause and the complaining individual is twice derivative:
Congress is accountable to the citizenry at large; the plaintiff is only one of
many indistinguishable citizens.
The FHA and the FOIA organize our perception of the right to information
of the bipolar private rights model and the source-path-goal schema. The
plaintiff is the source of the request, which is a physical thing he or she
makes n698 and delivers to the defendant. The remedial source-path-goal
metaphor moves that information from the governmental source to its goal: the
citizen. The imagery of the statement and account clause, in contrast, is
communal, not individualistic. The clause talks of drawing from the public
treasury (as if from the communal well) and of publishing (from the same root
as public) an account. This communal well metaphor does not cohere with the
remedial source-path-goal metaphor of the private rights model. The
relationship of the claimant in Richardson to the process, however, is not
different in any meaningful sense from that of the FOIA plaintiff. It is only
that we see the relationship differently.
But, how does this explanation address the injury-in-fact conundrum? Why
can Congress say that the FHA tester or FOIA plaintiff has standing to enforce
a right to obtain information even if he or she has by definition suffered no
actual injury as a result of the withholding of that information? If the
deprivation of the right is itself the injury-in-fact, then what of the
hypothetical conflict of interest statute mentioned in Schlesinger or the
plaintiffs in Valley Forge? In those cases, the Court seemed to be saying that
real injury-in-fact is an irreducible constitutional requirement for standing,
even when there is congressional specification of a right and authorization to
sue to enforce it.
The answer lies in the way we use metaphor to think about information.
Ideas are conceptualized by means of the ontological metaphor ideas are
objects. In our legal system, the denial of an object that someone is entitled
to receive is a classic injury: When real physical objects are involved, denial
is a deprivation of property. n699 Thus, we perceive the denial of information
as an injury-in-fact. n700 But a conflict of interest is a state, and it is a
state that pertains to some person other than the plaintiff. Because a conflict
is not conceptualized via the object metaphor, [*1497] it is not a
thing that can be denied. For a conflict to be actionable, there must first be
a consequential, objective injury.
There is a necessary relationship between variable human purpose and our
ability to fashion and deploy multiple models in order to interact successfully
with our environment. For example, there are many ways to conceptualize the
planet we live on; each of these models works quite well for specific purposes.
Thus, the idea that the earth is flat works perfectly well if I want to
navigate from my house to the law school; a simple, two dimensional model
— a road map — will suffice. But for other purposes, the two
dimensional model would be entirely misleading. Once I estimated the time it
would take me to travel from a small town near Santander to Santiago de
Compostela on the north coast of Spain. I computed the distance on the map and
figured the average speed the bus would make. When I boarded the bus on the
main road, which stretched straight ahead for miles, I was confident that I
would be in Santiago by mid-to-late afternoon. By the time I arrived at
midnight, I wished that I had had a three dimensional or topographical map that
showed how mountainous Galacia is.
I must replace the model the earth is flat (but bumpy) with the model
the earth is a sphere if I plan to circumnavigate the globe. But if I plan to
orbit the planet, I may want to know that it is flattened at the poles and
bulging at the equator; I might also want to know that the essentially
spherical earth has an irregular, nonspherical magnetic field.
In each of these examples, a particular model worked perfectly well for
some purposes but not for others. It is not that pre-Copernican humans were
silly to think the world flat, and that we are smarter because we know the
earth is "really" round. Rather, a workable understanding of the planet emerges
when we know that we may treat it as flat for some trips, bumpy for others, and
round for yet others. Similarly, it is difficult and dysfunctional to try to
capture all the possibilities and uses of adjudication in a single metaphor or
That the single term "law" should cover the Rule against Perpetuities as
well as the result of a controversy under the Commerce Clause is a prolific
source of confusion. It is a great pity that the differences in the content of
the material, the intellectual approach, and the technique of adjudication
between the two types of cases are not indicated at least by recognizing the
broad classification of "private law" and "public law." n701
Yet, our legal doctrine uses a single, simple orientational metaphor
("standing") — and a single, related model (the private rights model)
— in its attempt to capture all of the limits and possibilities of the
process of adjudication. Public rights cases simply do not fit into the more
limited private rights model: They are square pegs forced into round
[*1498] holes. Thus, the law of standing seems incoherent much of
the time and, in fact, does not work very well. In contrast, we employ a rich
variety of structural metaphors that inform our understanding and organize our
experience of the functional aspects of the adjudicatory process.
Litigation is an ordeal: The basic event is a trial, which is usually
a continuous event with a final, determinative end. n702 The actual experience
of trial is an ordeal for most litigants and lawyers. n703
Litigation is combat: Litigators are adversaries; they talk strategy
and make a plan of attack; they go for the jugular. They fight it out in court.
This metaphor derives from the rational argument is war metaphor that is
conventional in our culture. n704
Litigation is a play: There is much role playing at a trial; all
lawyers want their witnesses to stick to the script. We try to tell a story.
Litigation is a religious ritual: n706 Judges wear priestly robes; the
participants have special, even honorific, names; even simple forms of speaking
are ritualized ("Did there come a time that ..."). n707
Litigation is a game: n708 There are winners and losers, rules of the
game, prosecution and defense teams. n709
[*1499] Apparently inconsistent metaphors, such as these
metaphors about litigation, are coherent, and therefore work together, when
they each have similar entailments. n710 Each of these structural metaphors
shares entailments with the orientational "standing" metaphor: We stand at
religious ceremonies; most of our fighting is upright (as in "stand up and
fight like a man"); the notion of ordeal is often expressed through this
metaphor (as in "if you can't stand the heat, get out of the kitchen"); and the
only people who always remain seated at a play are the audience. Games commonly
have threshold requirements as anyone who couldn't "ante up" in poker or didn't
make the cut for the varsity squad knows all too well.
There is, however, an important structural metaphor with which
"standing" does not fit: Adjudication is a dialogue. "Dialogue" is from the
Greek dialogos. It is formed from the preposition dia — meaning through,
between, or across n711 — and the noun logos, which signifies the
universal rationality. n712 The dialogue metaphor does not fit either sense of
"standing": Not only do we usually converse seated, but we usually welcome
participation from anyone with something meaningful to add. n713 This metaphor
is, therefore, partially submerged in our system. Although the dialogue
metaphor is invoked — whether we argue a motion, put on witnesses, or
introduce physical evidence, we commonly [*1500] refer to the event
as a hearing — the dialogue metaphor is more typically used in
descriptions of the appellate process. n714
The coherence of the individualist metaphor of "standing" with the five
structural metaphors for litigation discussed above highlights that which is
ritualized, painful, and disjunctive about the process. Together with the
related private rights model, the individualist metaphor obscures and partially
excludes from our legal world several critical aspects of our social world. The
metaphor recognizes only self-interest as a motivator of human action; it
denies the possibility that we may care for others and be moved to act upon
that concern. It obscures not just that we are relational beings, but also that
we exist in a variety of different kinds of relations and groups.
A fuller and more functional system would recognize at least five
different group models based on part-whole and link schemata in addition to the
familiar individualist, private rights model of legal controversies premised on
the source-path-goal schema.
(1) An aggregative model: This model is exemplified by the class
action premised on a common question of fact, which prior to the 1966
amendments to the Federal Rules of Civil Procedure was referred to as the
"spurious" class action. n715 In these circumstances, the class is really just
an aggregation of individual claims connected by a common circumstance, such as
multiple accident victims in an airplane crash.
(2) A representational model: This model is altruistic. The individual
may act for other affected individuals because the latter are unable to act for
themselves. The altruism may be partial or pure. The petition for a writ of
habeas corpus brought by the "next friend" of the person [*1501]
who is incarcerated illustrates the pure model: In contrast, the informer's
action brought by someone who has information about, but is unaffected by, an
illegal action illustrates the partial model: The informer is offered private
gain as a consequence of his or her public service.
(3) A communal model: Individuals may share more than a predicament;
they may actually share a community of interest. This rationale led to the
modification of Rule 23 in 1966, and is illustrated by an early school
desegregation case, Potts v. Flax, n716 relied on by the drafters of the
In Potts v. Flax, the school board challenged the district court's award
of class-wide relief. In the board's view, a "class action was not appropriate
since each student is admitted, assigned and transferred as an individual....
[The board questioned] the right to bring a class action by reason of the
intrinsic nature of the rights involved." n718 But the Fifth Circuit held that:
"The peculiar rights of specific individuals were not in controversy." n719
Indeed, the court of appeals held that, even if the case had not been brought
as a class action, the district court could not have entered an order
specifying that only the named black plaintiffs be admitted to the previously
all-white school. Rather, only class-wide relief would have been
There is at least considerable doubt that relief confined to individual
specified Negro children either could be granted or, if granted, could be so
limited in its operative effect. By the very nature of the controversy, the
attack is on the unconstitutional practice of racial discrimination.... [T]o
require a school system to admit the specific successful plaintiff Negro child
while others, having no such protection, were required to attend schools in a
racially segregated system, would be for the court to contribute actively to
the class discrimination.... n720
While the holding in Potts is unremarkable, there is something that
seems incongruous about its dicta suggesting both that individual relief might
be prohibited in an individual case and that, instead, class relief might be
required. But the Potts court recognized that there are situations in which the
individual cannot be separated from the group to which he or she belongs
without causing or condoning substantial injustice.
(4) A relational model: This model introduces notions of volitional
community and of intimacy. Cases like Singleton v. Wulff n721 exemplify this
model. In Singleton, it is the doctor/patient relationship that is affected
[*1502] by the challenged state action, not the doctor as
(money-making) individual and the patient as (abortion-seeking) individual. The
individuals seek out each other, and their complaint is that the state is
impinging on their activities as a unit, that is, on their relationship.
Important human relationships depend on intimacy, vulnerability, and trust.
These individuals share a stake in their interaction; n722 the relationship
they form is an entity that is richer than the sum of its individual, selfish
(5) A constituent model: This model is familiar to us as the
shareholders' derivative suit that the early twentieth century Court first
employed in considering citizen and taxpayer standing before Fairchild and
Frothingham. n723 This model recognizes that, altogether, individuals are the
entity they constitute. n724 Thus, they may sue on its behalf against others.
More importantly, constituents may sue the entity to make it conform to the
law. Both derivative suits and the seventeenth through late nineteenth century
mandamus petitions served this purpose.
Current standing law is completely coherent only with the first of
these, the aggregative model. Standing law does not cohere with the pure
representational model, although, as in Havens Realty, a fiction can sometimes
make standing law do some of the work of a representational model. n725
Standing law can accommodate the communal model when a representative
individual with a live claim sues, although Lyons provides a disturbing
counterexample. n726 Standing law cannot accommodate the fourth model unless
the relational case is a sufficiently close variant of the individualist
prototype. n727 Standing law completely subverts [*1503] the
importance of the constituent model, as Valley Forge illustrates. n728
Thus, "standing" obscures several important aspects of our everyday
reality. Standing law allows only the possibility that we act out of
self-interest; it ignores the fact that we often act out of concern for others.
By refusing to recognize altruism as legally cognizable, standing law devalues
the social importance of altruism. Standing affirms and reinforces values in
modern culture that are disjunctive, fragmented, and alienating.
Our legal system is unable effectively to deal with those aspects of
society that the metaphor of "standing" and its doctrinal derivative obscure.
Because the law sees us only as individuals, it obscures the communal and
relational aspects of our experience. Thus, when presented with public
injustice or the claims of a victimized group, the law sees "nothing more than
a collectivity of private suits...." n729 Standing law disaggregates our
interests and thus diminishes them. This process is most apparent in the
suppression of the constituent model, where the price we pay is exacted in the
diminution of the instrumental value of the rule of law in a functioning
democratic system. This, I think, is what Justice Brennan had in mind in his
dissent in Valley Forge, where he complained that the majority's standing
decisions "tend merely to obfuscate, rather than to inform, our understanding
of the meaning of rights under the law." n730
C. Standing and Self-Governance
Perhaps the reason the law of standing so often seems incoherent is that
it is superimposed on a process that is largely dialogical and normative.
Standing is individualistic and, thus, merely aggregative in its approach to
groups. But both the dialogical and normative character of the adjudicative
process are inherently communal. The law is incoherent because the metaphors
involve mutually exclusive entailments. One consequence is that a doctrine
which is justified in terms of the separation of powers and the protection of
democratic, majoritarian choice becomes instead, an undemocratic tool of
exclusion. Rather than a tool to maintain the legal balance of our system,
standing law becomes a principal mechanism for making constitutional guarantees
unenforceable and for subverting the rule of law.
[*1504] Dialogue is communal in that it is participatory.
Normativity too is communal in that it addresses, organizes, and often
originates n731 from the community. In the actual experience of our legal
system, the process of constitutional adjudication is dialogical both in its
normative methodology and in its processes. Both individual cases and
substantive constitutional doctrines are explicitly interactive in drawing from
other societal sources the sum and substance of the fundamental values to be
considered protected by specific constitutional provisions. n732 Indeed, large
portions of modern constitutional doctrine are explicable only in terms of "the
dialogue between the Court and society over the content of our norms and
deepest values." n733 And, constitutional adjudication is obviously dialogical
in its process. It is largely appellate. As we climb the appellate ladder, the
briefs and oral arguments get longer and the degree of participation by
non-party amici curiae increases. John Stuart Mill justified judicial review in
part by observing that constitutional adjudication in the Supreme Court is
particularly dialogic: "[I]ts declarations are not made at a very early stage
of a controversy; ... much popular discussion usually precedes them; [and] the
court decides after hearing the point fully argued on both sides by lawyers of
The dialogic nature of the Court's process is substantially at odds with
the conceptualization of the adjudicative process by means of "standing" and
the private rights model. Despite the persistence of the Court's apparent
dedication to the individualistic premises of standing, it is less disciplined
regarding its own self-governance. The Court seems quite comfortable in its
normative role n735 despite the absence, in [*1505] many cases, of
a traditional, bipolar legal controversy. Two recent examples are Attorney
General of New York v. Soto-Lopez n736 and Bob Jones University v. United
In Soto-Lopez, two American citizens of Puerto Rican origin challenged
actions by the New York City Civil Service Commission denying them a veterans
employment preference. New York limited the preference to veterans who were
state residents at the time of their enlistment. Both plaintiffs were long-term
New York City residents, but both were Puerto Rican residents when they
enlisted. The plaintiffs sued the city, arguing that the residency requirement
violated their constitutional right to travel. The New York State Attorney
General intervened pursuant to the applicable federal statute, section 2403(b)
of the Judicial Code. n738 The plaintiffs won in the court of appeals. The
State of New York appealed. The City of New York, which was the only entity
from which the plaintiffs could seek any concrete relief, did not appeal. Thus,
appellant's only interest before the Supreme Court was in the constitutionality
of the state statutory and state constitutional provision limiting eligibility
for the veterans' preference.
Although counsel for Mr. Soto-Lopez raised the issue of justiciability
at oral argument, the Court's opinion gives not the slightest hint that it was
even questioned. n739 The problem of justiciability created by section 2403,
however, was noted by commentators at the time of its passage. n740 When
confronted with this problem, lower courts [*1506] had held that
"the desirability of an advisory opinion is not a substitute for
justiciability.... There is a difference between permitting the [government] to
play an active role during the pendency of private litigation, and permitting
it to go forward with the litigation in its own right after the private parties
have composed their differences." n741
In Bob Jones, the justiciability problem ran even deeper than in
Soto-Lopez. By the time the case reached the Supreme Court, the litigation was
purely unipolar because the government had switched positions and agreed with
the plaintiff. The Carter Administration had denied tax exempt status to a
private religious school because of the school's avowed policy of racial
discrimination. When the case reached the Court, however, the Reagan
Administration indicated that it would revoke the relevant regulation denying
tax exempt status to such schools. The Court appointed a private individual,
former Secretary of Transportation William T. Coleman, Jr., as a special amicus
curiae to argue the government's former position. The government moved to
dismiss the case as moot.
The Court's discussion of the lurking problem of justiciability was
confined to a footnote. n742 The Court stated that the District of Columbia
Circuit had enjoined the government from granting tax exempt status to schools
that discriminate, observing that the Reagan Administration had informed the
Court that it would not revoke the regulation. But the justiciability question
remained unresolved, because the government had not changed its position in the
Bob Jones case. Moreover, when the District of Columbia Circuit case was later
appealed, the Supreme Court held that the plaintiffs did not have standing to
raise the question. n743
Both of these decisions are good ones. Each reinforces notions of
community: Soto-Lopez reaffirms that, under the Constitution, our community is
national and not state or local; Bob Jones declares that the nation will not
subsidize with favored tax status institutions that shun segments of the
community. But neither fits the ordinary model of adjudication that the Court
so rigidly insists on in cases like Simon or Valley Forge.
"[P]eople in power get to impose their metaphors." n744 The Realists and
post-Realists are partly correct that the Court manipulates standing, but they
miss the true focal point of that manipulation. Standing is not an on/off
switch that the Court flips depending on its feeling about [*1507]
the merits of the particular case. The Court's actions only look calculated in
that way because standing is not really separable from the merits. The
manipulation is different: The Court's invocation of standing limits the
normative work of the lower courts. But, the Court is more flexible in the way
in which it allows standing law to guide its own decisions, partly because the
Court appreciates that its role is inherently normative. Who could be better to
discuss the relevant norms with than the New York Attorney General in
Soto-Lopez or a "lawyer of reputation" n745 like Bill Coleman in Bob Jones?
But this inconsistency permits "traces of self-government" only at the
Court, n746 denying the citizenry at large the possibility of participation.
If, however, our adjudicative process is about the "commitment to the pursuit
of mediative practical reason through normative dialogue ...," n747 as I
believe it is, then a commitment to democracy and self-government implies
citizen participation. An earlier generation held this view, recognizing the
constituent model and understanding that every citizen "is interested, as a
citizen, in having the laws executed, and the right in question enforced." n748
Indeed, that generation viewed citizen interference to "see that a public
offence be properly pursued and punished, and that a public grievance be
remedied" as a duty, as well as a right; they saw it as the onus of democratic
This vision of the process of active self-governance by the citizenry
now marches down the halls of the legal academy under the republican banner.
n750 The republican vision is exactly contrary to the Court's view, which
rejects any possibility "that the Founding Fathers intended to set up something
in the nature of an Athenian democracy or a New England town meeting to oversee
the conduct of the National Government by means of lawsuits in federal courts."
n751 But the republican vision of participation and reason is closer to that of
the first Congress — which authorized uninjured and unaffected informers
to enforce in court legal restrictions on customshouse officials — than is
the monochromatic vision of current constitutional doctrine.
The real problem of the supposedly counter-majoritarian tendency of
judicial review is that so much of the normative work of the courts occurs
through a process that is exclusionary rather than participatory. The
[*1508] systematic destruction of the constituent model through
modern standing law denies the notion that, in a democracy committed to
self-government, the whole cannot be something more powerful than the sum of
its parts. This undemocratic denial is what renders unacceptable much of
current standing law, which disallows equally to each and every constituent the
possibility of asserting the rights of the group and of the entity, as
illustrated by Richardson, or Schlesinger, or Valley Forge. It is, thus, an
affirmation of authoritarianism in the guise of democracy; it is a denial of
The public rights model, in contrast, recognizes that we are the
government and that we are entitled to decide our fate. We do so by adopting
communal norms and by enforcing them. The public rights model is republican in
both the particular, American, historical sense n752 and in the "deep" sense
that Professor Michelman identified: It is "participatory, conversational,
inclusory, reasonable, and strongly committed to immediacy." n753 By
"immediacy," Michelman means that "self-government is the business of the self,
not to be displaced onto any distanced force." n754
Thus, "freedom consists of socially situated self-direction — that
is, self-direction by norms cognizant of fellowship with equally self-directed
others." n755 Only the public rights model recognizes that we exist in a
community with self-directing others. Only this model affirms the ability of
the individual citizen to be heard above the din of pluralistic,
self-interested, majoritarian politics, and to participate directly in the
normative process. The answer to the "baffling" question of "where to find
self-government under 'this Constitution'" n756 is hidden in that part of our
history obscured by the law of standing: the public rights model.
D. Managing Our Metaphors
The Framer's generation had a better understanding of the meaning of
rights in a democracy, in part because they were not restricted by the
monophonic "standing" metaphor. Today, the Court's dominant ideology of
standing doctrine allows us to hear with only one ear. Not surprisingly, we
hear less: "The fox knows many things, but the [*1509] hedgehog
knows only one great thing." n757 The Framers' generation was alert to citizen
participation; the modern Court uses standing as a defense against such
participation in much the same way that the hedgehog uses its porcupine-like
quills against its enemies.
The advantages of the original participatory scheme were twofold. First,
with more models at its disposal, the law of justiciability could accommodate
greater portions of our reality as necessary. Second, the original scheme was
designed to maintain the constancy of political (read: democratic) choice.
Because the limitation of adjudication to cases and controversies was only a
limitation to the judicial forms, the legislature could control the work of the
courts by creating new rights, new remedies, or new forms of action. n758
Furthermore, the doctrine of that era recognized that not all questions were
equally suited to judicial determination, even if the questions could be raised
by one of the recognized forms. Marbury, which concerned a public rights model
and emphasized the common law's requirements, or the identity of rights and
remedies, n759 recognized that there were some "acts that are only politically
examinable." n760 This political question doctrine, with all its doctrinal
difficulty, preserved the constancy and immediacy of the underlying political
Professor Tushnet observed that "when the political questions doctrine
fell into desuetude after Baker v. Carr, it was replaced ... by the standing
doctrine." n761 Standing law thus replaced a direct choice about the uses of
adjudication with a surrogate doctrine viewing the adjudicative process by
means of an abstracted vision of the process' elements. But this abstracted
vision fails in three ways: because "standing" considers only one part of the
process, the private rights model; because standing is a surrogate, too far
removed from the realities and policies it seeks to address meaningfully to
accomplish its purpose; n762 and because the balance that standing law attempts
to strike is defined in putatively neutral, process-oriented terms. Even if
this neutral posture were possible, it would still be dysfunctional. Standing
law has no mechanism for adjusting the balance with changing times and
situations; it therefore presumes that the balance sought by Justices
[*1510] Brandeis and Frankfurter in the substantive due process era
will be appropriate for the twenty-first century. In contrast, the original
participatory scheme preserved choice, recognizing that some things are better
mediated by reasoned adjudication and others by the ballot box, the legislative
bargain, or executive discretion. The participatory vision required an ongoing
discrimination among areas of relative institutional competence and
effectiveness. n763 The original scheme allowed the balance to shift with
changes in society; it acknowledged that our situation and our needs for
governance are not static.
The cost of the current system is the cost of obfuscation. That cost is
manifest in cases like City of Los Angeles v. Lyons, where human life and
constitutional constraint on state power were balanced against law
enforcement's need for discretion to pursue its mission effectively. n764
Instead, the Court focused on whether Adolph Lyons had a personal controversy
with the City of Los Angeles regarding the future conduct of its police
officers. That he had once been choked nearly to death was irrelevant because,
in the Court's view, that fact did not address the likelihood that Mr. Lyons
might be subjected to a chokehold again. That others were dying while the case
continued was irrelevant. Also irrelevant was that they too could not be
present because the police had not yet chosen them as victims. And most
irrelevant was the political process, which ultimately stopped the carnage, but
not until another six individuals had died. n765
Lyons was a case in which standing law disaggregated individuals who
shared an important, life-or-death interest. But equally importantly, Adolph
Lyons and the other victims were also constituents harmed by their own
government. They depended entirely on the "rule of law" to constrain that
government from harming them unjustly. When Adolph Lyons pressed their claim
against government, he was insisting on public rights. He was insisting on
their behalf that government act only within the community's norms, as
expressed in the Constitution and in the normative process of its
What gave Mr. Lyons the "right" to speak for others and insist on
legality in others' behalf? Is it not preferable that others assert their own
rights, as the Court acknowledged in Singleton? n766 From the individualist
standpoint, Mr. Lyons' concern was officious, intermeddling, and inappropriate.
Standing law would permit him to act only in his [*1511] own
self-interest. The Court could not see any such interest because the Court
thought it highly "speculative" that Mr. Lyons would be subject to the
challenged police practice again.
But, a plaintiff like Adolph Lyons can be motivated by something more
than the Court allows. True, Mr. Lyons had been wronged and he sought monetary
relief for himself. And, as the dissent argued, his concrete interest made him
a reliable representative for the interests of the as yet unidentified future
victims. n767 But, one's motivation can be broader, more generous. No doubt
Adolf Lyons was angered about his own mistreatment. But such anger can be
expressed as concern for others. Mr. Lyons' suit reflected such an extension of
self — the identification of the interests of the self with those of
others — precisely what the "law of standing" does not allow. n768
Standing law not only leads to bad decisions, it represents bad sociology and
bad morality as well.
Cases like Singleton, Geraghty, and Roper recognize that altruism may
be, if we will it. Rule 23, like its forebearer bills of peace in equity, n769
acknowledges that communities of interest do exist and that the law can
recognize and address them. Acknowledging the altruistic, relational, communal,
and constitutive models I have suggested will raise other questions: (1) How to
save the meaningfulness of the adjudicatory process after standing has been
abandoned; (2) how to make representation work; and (3) how to decide who makes
these determinations. The answers to these questions are already implicit in
existing legal doctrine and theory.
To say that the essence of the process lies not in the private rights
model, but in the self-referring notion that a dispute is justiciable when it
is "definite and concrete, touching the legal relations of parties having
adverse legal interests" is not new. n770 Courts at the dawn of the age of
standing recognized that "[t]he prime object of all litigation is to establish
a right asserted by the plaintiff or to sustain a defence set up
[*1512] by the party pursued." n771 What we need for justiciability
are parties who have taken up adverse positions, a presentation of an abstract
legal question in a factual setting sufficiently concrete to inform judgment,
and "judicially discoverable standards" n772 — a question that fits the
existing legal categories and is susceptible to the dominant modes of legal
thought. The Court asked only for these elements in Hayburn's Case. It was not
concerned that the Attorney General had no personal stake; it was concerned
that the outcome of the controversy would turn on executive discretion rather
than the result of the Court's "mediative practical reason through normative
The stripped-down definition of "case or controversy" that I have just
described is only the common denominator of the political question and standing
doctrines. It would account for virtually all of the classic decisions in cases
mounting generalized challenges to constitutional amendments or congressional
statutes. n774 If the definition doesn't say very much, it is because there
isn't much to say. Once we recognize that legislation and adjudication are not
dichotomous, but are merely different points on a single normative spectrum,
then we are free to assume responsibility. In the meantime the courts hide,
like Professor Vining's octopus at the bottom of the ocean:
Inside the self-constructed home everything does not depend on
everything else and entities do not dissolve conceptually into some other
entity or some larger unity. The court can swim out into the great sea around
and dart back when frightened by its dark vastness.... Fear may make it too
difficult to admit, except by allusion, that one is swimming in the sea and
that one's behavior is a reaction to it. Denial is a normal defense of the
human mind against great fear; the legal mind is not peculiar in this regard.
Cases like Lyons remind us that there is a real human cost to this
The answer to the second question — that of assuring adequacy of
representation — starts with the recognition that the problems of
representation are purely instrumental. For years, commentators have recognized
that the broad equitable powers of the federal courts are entirely sufficient
to assure the competence and adequacy of representation. n776 Nineteenth
century law, as described in cases like Wellington n777 and Hall, n778 employed
just such a flexible, instrumentalist [*1513] approach. Rule 23
already provides a model less cumbersome than the statutory informer suit with
its multiple complications n779 and more easily regulable than the English
relator practice. n780
I do not mean to suggest, however, that we reconstitute standing in the
class action mode. Rather, in a democracy, the issue of how we reconstitute
models of justiciability should be open to discussion and debate. The point of
this article is not to advance a particular doctrinal proposal as the solution
to our problems, but rather to open the debate on the occasions for public
rights litigation. Standing in the shadow of current doctrine, n781
congressional power to determine appropriate justiciability models seems in
doubt. n782 It should not be. The answer to the third question — who makes
decisions about access to the courts — lies in fundamental democratic
premises: The elaboration of the public rights model and the occasions for its
invocation should be "a development to which the courts contribute but in which
the legislature has an even greater hand." n783
If standing is really about the right to be recognized and its
concomitant remedies, then Congress, and not the Court, should have the
ultimate power to define standing. Congress may recognize or create legal
rights; it may structure the most meaningful remedies to see their fruition
within a society of competing interests. If standing law seeks to define the
proper uses of adjudication in a democratic society, then the democratic
process should be the primary mechanism through which the uses and limits of
adjudication are chosen. The nineteenth century Court explicitly acknowledged
the primacy of Congress in determining the limits of justiciability in mandamus
cases like Kendall and Hall. n784
The current system is democratically dysfunctional. The Court decides
how the judicial process is to be used and for what. In so doing, the Court
inevitably decides what rights citizens have to demand that government behave
according to the general will. Yet, the Court does so without accounting to the
public for its reasoning. This system is more undemocratic than adjudicative
norm-making; it takes control of government out of the hands of government's
constituents. Standing law disaggregates the citizenry; it is a judicial
version of divide and conquer. Democratic [*1514] politics —
and republican participation — should have a greater say in what the
courts do and how they do it. We may ask less of the courts than we do now; we
may insist on more. But it is for us to say.
VII. CONSTRUCTING NEW MEANINGS, CREATING NEW POSSIBILITIES
A new meaning is the equivalent of a new word. n785
The world grows smaller, and humans grow increasingly interdependent on
one another. A nuclear accident in the Ukraine taints the milk in Oregon. A
decision by the IRS in Washington may affect the health care available to
indigents in Kentucky. The ultimate price of a decision regarding the training
provided police rookies, or the discipline imposed on an errant officer, may be
exacted in the life of an innocent citizen. n786
At the same time that we grow increasingly interdependent we are,
nevertheless, increasingly fragmented. We live in segregated neighborhoods, but
we cannot segregate the effects of innercity blight and underclass status;
these conditions impose costs that leave none of us untouched. We are less and
less capable of bridging the gaps of race, wealth, and sectional need. We are
increasingly unable to see our common needs, and less and less able adequately
and meaningfully to provide for them.
The individualist ideology embedded in the social construct of standing
is a part of this problem. This constraint reinforces our false sense of
separation, and acts as a substantial legal impediment to supportive and
mutually protective action. Our ability to succeed as a society in our third
century under the Constitution will depend on whether, as individuals, we can
nevertheless recognize a shared stake in the community. It will depend on our
willingness to stand up for the common social good and for interests larger
than our own. It will depend on our commitment to provide fora that encourage
relatedness. It will depend on our capacity for community and for
Yet, a utopian communitarianism might recreate the problem of
collectivism that individualism purported to solve. It might allow the whole
(read: government) to do things to the part (i.e., the individual) in the name
of the greater good. This critique, however, misconstrues the communal
enterprise that I am advocating. I do not argue that we should discard
individualism, nor that we should abandon the salutory notion of constitutional
rights. Rather, we need to find a way to integrate a sense that we are,
inescapably, individuals-in-communities. Only in this way can we avoid the
polar pitfalls of individualism and collectivism. The dual model system of
adjudication — recognizing both [*1515] private and public
rights — provides one legal mechanism through which we can seek and
attempt to maintain a sense both that we are individuals and that what happens
to varied communities upon which we depend matters very much to each of us.
The recognition of a place for altruism in our legal system, moreover,
does not require us to abandon notions of individualism. Altruism need not
depend on communitarian notions of moral responsibility nor on long term
self-interest. n787 Altruism can be selfishness turned around. Because I can
see me in you (the self in others), I can be motivated to act for you as if I
were acting for myself. The stranger, thus, can be metaphor for the self. n788
We see the sameness and therefore can assimilate the needs of the other to our
experience of our own, and we can do so even in specific situations in which
our needs are not directly implicated. Altruism can be a form of transcendent
We must recognize that we are both individuals and members of
communities, and grapple with the implications of individualism and
communitarianism. n789 I believe that this is still possible in our society. My
hope is that the standing metaphor is merely frozen and not petrified in our
law and social structure. I have tried, in this article, to thaw the block of
doctrine and miscast history to allow consideration of the possibility of
alternatives. If the metaphor can be defrosted, then perhaps we can reanimate
it. For the metaphor of "standing" is capacious enough to encompass more than a
sense of individualism; it can also include a sense of altruism. No longer need
we always stand alone, apart from one another. Instead, we may stand up for one
another; we may stand by each other. We will still stand as individuals, but
our sense of ourselves will be changed. Then we will be able to answer the
questions Hillel asked some nineteen and one half centuries ago: "If I am not
for myself who will be for me? And when I am by myself, what am I? And if not
now, when?" n790
We are adrift. Life's random misfortunes lap at the gunnels; grey finned
Chaos swims around us. The storms of the moment toss and blow us about. From
time to time they threaten the more tyrannous typhoons that we observe on the
horizon at a [*1516] distance. We watch that horizon for
intimations of rescue. But mostly we are parched by the sun's harsh light of
indifference, its reflection of our alienation. The rubber of our craft bakes
and blisters. We are alone in the end. Together. Rowing. No one stands in a
* Associate Professor of Law, University of Miami; B.A., Yeshiva College
1974; J.D., Columbia University 1977. This article is dedicated to Adolph Lyons
and to the six people who died while the legal system failed adequately to
respond to his claim.
I want to express my gratitude to Terry Anderson, Mary Coombs, Michael
Fischl, Pat Gudridge, Mark Johnson, Minnette Massey, Joel Rogers, Rob Rosen,
Mark Tushnet, Bruce Winick and (especially) Jennifer Jaff for comments and
criticism that helped improve this article. But I owe my greatest debts to six
people: to my research assistant Louis Moritz for his diligent work and helpful
suggestions; to Jeremy Paul and Jennifer Jaff, whose support and sense of
shared excitement define a new norm of collegiality; to Lynn Winter, who was
always unflagging in patience and in support; to George Lakoff, whose capacity
for community and for scholarship exceed ordinary proportions; and to Tony
Amsterdam, whose friendship, generosity, and insight transcend all
n1. ARISTOTLE, POETICS 255 (I. Bywater trans. 1954) (ch. 22, para.
n2. Flast v. Cohen, 392 U.S. 83, 129 (1968) (Harlan, J., dissenting)
(describing majority opinion).
n3. A. C. DOYLE, The Adventure of the Abbey Grange, in 2 THE COMPLETE
SHERLOCK HOLMES 636 (1930).
n4. Hearings on S. 2097 Before the Subcomm. on Constitutional Rights of
the Comm. on the Judiciary, 89th Cong., 2d Sess. 498 (1966).
n5. Valley Forge Christian College v. Americans United for Separation of
Church and State, 454 U.S. 464, 475 (1982) (Rehnquist, J.); see also
Association of Data Processing Serv. Orgs. v. Camp. 397 U.S. 150, 151 (1970)
("Generalizations about standing to sue are largely worthless as such.");
Flast, 392 U.S. at 95, 97 ("Justiciability is itself a concept of uncertain
meaning and scope."). Professor Jaffe has noted that even "Justice Frankfurter
found himself reduced to a nearly unprecedented degree of inarticulateness" in
discussing standing. Jaffe, Standing to Secure Judicial Review: Public Actions,
74 HARV. L. REV. 1265, 1268 (1961). Jaffe was referring to Justice
Frankfurter's opinion for the Court in United States ex rel. Chapman v. Federal
Power Comm'n, 345 U.S. 153 (1953), where the Justice noted that: "It would not
further clarification of this complicated specialty of federal jurisdiction,
the solution of whose problems is in any event more or less determined by the
specific circumstances of individual situations, to set out the divergent
grounds in support of standing in these cases." Id. at 156.
This article focuses on the purely constitutional, article III law of
standing. The concept of standing probably raises all or most of the same
problems in other areas such as administrative law, antitrust, and the fourth
amendment. I do not treat them here. For a cogent explanation of the policy
considerations that make the stakes in the standing analysis somewhat different
in administrative law, see Stewart, The Reformation of American Administrative
Law, 88 HARV. L. REV. 1669, 1742 (1975). For a discussion of the way in which
fourth amendment standing reflects the same considerations and entails the same
problems presented by article III standing, see notes 591 & 722 infra.
n6. Valley Forge, 454 U.S. at 471.
n7. The "injury in fact" terminology comes from the majority opinion in
Data Processing, 397 U.S. at 152. The introduction of the injury-in-fact
criterion was part of an effort to expand standing. See Simon v. Eastern
Kentucky Welfare Rights Org., 426 U.S. 26, 39 (1976).
n8. Valley Forge, 454 U.S. at 472.
n9. The causation/redressibility requirement first appeared in Linda R.
S. v. Richard D., 410 U.S. 614, 617-18 (1973), and was constitutionalized in
Warth v. Seldin, 422 U.S. 490, 504 (1975).
n10. United States v. Richardson, 418 U.S. 166, 179 (1974).
n11. Section V of this article attempts to demonstrate that the Court
has not been successful in articulating such a coherent doctrine, either in
majority opinions or in dissents. For attempts by scholars to harmonize the
law, see Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case
or Controversy" Requirement, 93 HARV. L. REV. 297 (1979); Burnham, Injury for
Standing Purposes When Constitutional Rights Are Violated: Common Law Public
Value Adjudication at Work, 13 HASTINGS CONST. L.Q. 57 (1985); Scalia, The
Doctrine of Standing as an Essential Element of the Separation of Powers, 17
SUFFOLK U.L. REV. 881 (1983). See also Stewart, supra note 5, at 1723-41.
n12. Scholars who have attempted such analyses include Albert, Standing
to Challenge Administrative Action: An Inadequate Surrogate for Claim for
Relief, 83 YALE L.J. 425, 425-29 (1974); Logan, Standing to Sue: A Proposed
Separation of Powers Analysis, 1984 WISC. L. REV. 37; Nichol, Rethinking
Standing, 72 CAL. L. REV. 68 (1984); Schnurer, "More than an Intuition, Less
than a Theory": Toward a Coherent Doctrine of Standing, 86 COLUM. L. REV. 564
(1986) (student author). See also Currie, Misunderstanding Standing, 1981 SUP.
CT. REV. 41, 41 (1982). For a discussion of the problems with these analyses,
see note 88 infra and accompanying text.
n13. A. BICKEL, THE LEAST DANGEROUS BRANCH 119-27 (1962).
n14. See, e.g., Tushnet, The Sociology of Article III: A Response to
Professor Brilmayer, 93 HARV. L. REV. 1698, 1715 n.72 (1980) ("Doesn't the fact
that the Court issues so many inconsistent decisions tend to indicate that the
entire concept of standing is awfully prone to manipulation and incoherence?").
Although it is probably impossible to document, I suspect that most academics
and practicing lawyers at least share the suspicion that standing law is
nothing more than a manipulation by the Court to decide cases while not
appearing to decide their merits.
Perhaps the most sophisticated version of this thesis appeared in the
first edition of H. FINK & M. TUSHNET, FEDERAL JURISDICTION: POLICY AND
PRACTICE 319-23 (1st ed. 1984) [hereinafter H. FINK & M. TUSHNET (1st
ed.)]. Originally, Professors Fink and Tushnet suggested that:
The doctrines are manipulated to allow the Court to reach the merits
openly in some cases while disguising its rulings on the merits in other
cases.... It may be that the Court conceals its rulings on the merits by using
the injury-causation test in cases where it believes the public disapproval of
an overt rejection of the claims on the merits would exceed public disapproval
of an apparent door-closing decision, and conversely that it rules on the
merits openly where it believes that public approval of the rejection of the
claims would exceed public approval of the denial of standing.
Id. at 319. It would be difficult to document this hypothesis, and there
are counter-examples that suggest this is only a partial truth. See, e.g., text
accompanying notes 742-743 infra. The second edition of the casebook no longer
contains this passage, but it suggests a similar theme in its discussion of
standing doctrine. See H. FINK & M. TUSHNET, FEDERAL JURISDICTION: POLICY
AND PRACTICE 303, 321 (2d ed. 1987) [hereinafter H. FINK & M. TUSHNET (2d
n15. 461 U.S. 95 (1983).
n16. See id. at 106 n.7 ("[I]n any event, ... Lyons would have to
credibly allege that he faced a realistic threat from the future application of
the City's policy.").
n17. Id. at 137 (Marshall, Brennan, Blackmun & Stevens, JJ.,
n18. Id. at 116 n.3.
n19. Tennessee v. Garner, 471 U.S. 1, 11 (1985). Garner applied the
fourth amendment to invalidate the fleeing felon doctrine of the common law.
Under Garner, an officer must have probable cause to believe the suspect
dangerous before he or she may resort to deadly force to prevent escape. For a
discussion of the metaphors underlying the Garner decision, see Winter,
Tennessee v. Garner and the Democratic Practice of Judicial Review, 14 N.Y.U.
REV. OF LAW & SOC. CHANGE 679 (1986).
n20. 262 U.S. 447 (1923).
n21. See Flast v. Cohen, 392 U.S. 83, 91 (1968) ("This Court first faced
squarely the question whether a litigant asserting only his status as a
taxpayer has standing to maintain a suit in federal court in Frothingham v.
Mellon....") (footnote omitted). Typically, contemporary casebooks on the law
of federal courts and on constitutional law discuss Frothingham but fail
altogether to note its predecessor, Fairchild v. Hughes, 258 U.S. 126 (1922).
See, e.g., M. REDISH, FEDERAL COURTS: CASES, COMMENTS, AND QUESTIONS 16-17
(1983); P. LOW & J. JEFFRIES, FEDERAL COURTS AND THE LAW OF FEDERAL STATE
RELATIONS 40 (1987); H. FINK & M. TUSHNET (2d ed.), supra note 14, at
295-96; D. CURRIE, FEDERAL COURTS CASES AND MATERIALS 12-13 (3d ed. 1982); G.
GUNTHER, CONSTITUTIONAL LAW 1543-44 (11th ed. 1985); W. LOCKHART, Y. KAMISAR,
& J. CHOPER, CONSTITUTIONAL LAW: CASES-COMMENTS-QUESTIONS 1632-34 (5th ed.
1980); accord H. HART & H. WECHSLER, FEDERAL COURTS AND THE FEDERAL SYSTEM
158-60 (1953). The one contemporary exception is P. BATOR, P. MISHKIN, D.
SHAPIRO, & H. WECHSLER, HART & WECHSLER'S THE FEDERAL COURTS AND THE
FEDERAL SYSTEM (2d ed. 1973), which notes both Fairchild and Frothingham. Id.
at 180, 181.
n22. 258 U.S. 126 (1922).
n23. Id. at 129. In Frothingham, too, the plaintiff's claim was rejected
because she failed to show that she had "sustained ... some direct injury ...,
and not merely that [s]he suffers in some indefinite way in common with people
generally." Frothingham, 262 U.S. at 488.
n24. Id. at 486-89. Fairchild, in contrast, relied on two of the general
justiciability cases and one of the jus tertii cases. See note 330 infra.
n25. Bradfield v. Roberts, 175 U.S. 291 (1899); Millard v. Roberts, 202
U.S. 429 (1906); Wilson v. Shaw, 204 U.S. 24 (1907); Hawke v. Smith, 253 U.S.
221 (1920); Leser v. Garnett, 258 U.S. 130 (1922) (the companion case to
n26. See, e.g., F. FRANKFURTER & J. DAVIDSON, CASES AND OTHER
MATERIALS ON ADMINISTRATIVE LAW 194-363 (1932); Frankfurter & Hart, The
Business of the Supreme Court at October Term, 1934, 49 HARV. L. REV. 68, 93-95
(1935). In his casebook, Professor Frankfurter devoted almost 200 pages to the
scope of the judical power and to questions of justiciability, treating such
classic federal courts issues as advisory opinions, political questions, and
legislative courts. The casebook does not invoke either the term or the concept
of standing, does not include either Frothingham or Fairchild, and does not
treat any of the cases that Justice Frankfurter later cited in his opinions on
standing. Compare F. FRANKFURTER & J. DAVIDSON, supra, with Coleman v.
Miller, 307 U.S. 433, 460-70 (1939) (opinion of Frankfurter, J.), and Joint
Anti-Facist Refugee Comm. v. McGrath, 341 U.S. 123, 150-57 (1951) (Frankfurter,
In their 1935 review of the previous term, Professors Frankfurter and
Hart discussed the general "jurisdictional limitations," including "the
threshhold requirement of the existence of a 'case' or 'controversy'...."
Frankfurter & Hart, supra, at 94. Their only reference to "standing" was
the rejection of "any practice which would make of the Court a standing body of
expert expounders of the Constitution." Id. See also Frankfurter & Fisher,
The Business of the Supreme Court at October Terms, 1935 and 1936, 51 HARV. L.
REV. 577, 623-32 (1938) (discussing restrictions on constitutional claims in
terms of equity and avoidance of constitutional issues).
n27. "Courts, whose jurisdiction was defined by the system of writs, did
not need to speak of standing. The question was whether a challenger was
entitled to a writ, whether he had a cause of action, whether the writ lay." J.
VINING, LEGAL IDENTITY 55 (1978). Thus, in his concurring opinion in McGrath,
Justice Frankfurter began his discussion of standing by observing that: "A
litigant ordinarily has standing to challenge governmental action of a sort
that, if taken by a private person, would create a right of action cognizable
by the courts." 341 U.S. at 152 (citing United States v. Lee, 106 U.S. 196
(1882)) (Frankfurter, J., concurring).
The earlier notion of justiciability referred to in United States v. Lee
did not include a fixed idea about the relationship between the party's status
and a generalized conception of legal process. Rather, the Court in Lee
described justiciability in purely formalistic terms: "a plaintiff capable of
suing, a defendant who has no personal exemption from suit, and a cause of
action cognizable in the court, — a case within the meaning of that term,
as employed in the Constitution and defined by the decisions of this court."
Lee, 106 U.S. at 219; accord In re Pacific Ry. Comm'n, 32 Fed. 241, 256
(C.C.N.D. Cal. 1887).
n28. For a version of this traditional account, see, e.g., Chayes, The
Supreme Court, 1981 Term — Foreword: Public Law Litigation and the Burger
Court, 96 HARV. L. REV. 4, 8-10 (1982).
n29. The term "private rights model" is taken from Monaghan,
Constitutional Adjudication: The Who and When, 82 YALE L.J. 1363, 1365-68
n30. See notes 20-26 supra and accompanying text.
n31. See notes 150-161 infra and accompanying text. Professors Jaffe and
Berger reveal the origins of these practices in English and pre-Revolutionary
American law. Jaffe, supra note 5, at 1269-75; Jaffe, Standing to Secure
Judicial Review: Private Actions, 75 HARV. L. REV. 255, 258-61 (1961); Berger,
Standing to Sue in Public Actions: Is it a Constitutional Requirement?, 78 YALE
L.J. 816, 818-27 (1969). Professor Jaffe's canvass of the English mandamus
cases led him to conclude that: "I have encountered no case before 1807 in
which the standing of plaintiff is mooted, though the lists of the cases in the
digests strongly suggest the possibility that the plaintiff in some of them was
without a personal interest." Jaffe, supra note 5, at 1270. "It was not, so far
as I can find, until the end of the [nineteenth] century that our question was
mooted." Id. at 1271. Even then, the English cases reached opposing conclusions
on the necessity of a personal stake. Id. at 1271-73.
n32. Union Pac. R.R. v. Hall, 91 U.S. 343 (1875). See notes 135, 169-173
infra and accompanying text.
n33. J. VINING, supra note 27.
The word standing is rather recent in the basic judicial vocabulary and
does not appear to have been commonly used until the middle of our own century.
No authority that I have found introduces the term with proper explanations and
apologies and announces that henceforth standing should be used to describe who
may be heard by a judge. Nor was there any sudden adoption by tacit consent.
The word appears here and there, spreading very gradually with no discernible
pattern. Judges and lawyers found themselves using the term and did not ask why
they did so or where it came from.
Id. at 55. Vining traces its first American usage to the headnote in
Davis & Farnum Mfg. Co. v. Los Angeles, 189 U.S. 207 (1903). Id.
Vining does note a canonic, medieval precedent for the term "standing"
that is clearly procedural: excommunicatus non habet personam standi in iudicio
(one who has been excommunicated has no standing in court). J. VINING, supra
note 27, at 190 n.33.
n34. "There seems little doubt that American usage is derived from the
British." Id. at 55. In this view, the term "standing" is derived from the
English legal concept of locus standi — literally, "a place to stand on."
See 2 W. JOWITT, THE DICTIONARY OF ENGLISH LAW 1115 (2d ed. 1977); J. VINING,
supra note 27, at 55. The term locus standii has its origin in parliamentary
practice "with reference to the question whether a person who objects to a
private Bill has the right to appear by counsel and summon witnesses to support
his objection before the select committee." W. JOWITT, supra, at 1115; EARL OF
HALSBURY, THE LAWS OF ENGLAND 749-50 (1912); accord J. VINING, supra note 27,
at 55. In modern English administrative law, however, the term locus standii
has taken on a meaning similar to that of standing in American administrative
and constitutional law. S. A. DE SMITH, JUDICIAL REVIEW OF ADMINISTRATIVE
ACTION 366-67, 407-09 (3d ed. 1973).
n35. See text accompanying notes 251-260 infra. In the late nineteenth
and early twentieth centuries, its primary usage was in equity to express the
substantive limits of its jurisdiction. This equity usage evolved in a manner
that helped lay the groundwork for the development of the modern constitutional
doctrine of standing. See text accompanying notes 261-289 infra. I will
describe these developments in some detail in Section IV, below.
n36. 307 U.S. 433, 464-68 (1939).
n37. See Flast v. Cohen, 392 U.S. 83, 92 n.6 (1968); Jaffe, supra note
31, at 302-03; Brown, Quis Custodiet Ipsos Custodes? — The School Prayer
Cases, 1963 SUP. CT. REV. 1, 15 ("I do not know whether Frothingham v. Mellon
is a constitutional decision or a prudential one.").
n38. See Valley Forge Christian College v. Americans United for
Separation of Church and State, 454 U.S. 464, 472 (1982) (majority opinion).
n39. Id. at 496 (Brennan, J., dissenting); see also note 37 supra.
n40. See Warth v. Seldin, 422 U.S. 490 (1975); Linda R. S. v. Richard
D., 410 U.S. 614 (1973).
n41. Chayes, supra note 28, at 19 (citing Palsgraf v. Long Island R.R.,
248 N.Y. 339, 162 N.E. 99 (1928)).
n42. See, e.g., Palsgraf, 248 N.Y. at 352-53, 162 N.E. at 104 (Andrews,
J., dissenting). Professor Chayes suggested that "[O]ur mythical first-year law
student knows that there are no 'direct' or 'indirect' injuries. There are only
causal chains of different lengths. The question is, 'how long is too long?'
The answer can readily be made to vary, if not with the length of the
Chancellor's foot, then with the interests and sympathies of shifting
configurations of five Justices." Chayes, supra note 28, at 19.
n43. See H. FINK & M. TUSHNET (1ST ED.), supra note 14, at 320 ("Why
do tax law and equal protection law embody identical injury-causation
requirements?"). But compare Duke Power Co. v. Carolina Envtl. Study Group,
Inc., 438 U.S. 59 (1978) (upholding standing on the basis of an attenuated line
of causation between the Price-Anderson Act and a reduction in property values
of houses situated near nuclear power plants).
n44. "[I]f the plaintiff is given standing to assert his claims, his
interest is legally protected; if he is denied standing, his interest is not
legally protected." C. WRIGHT, LAW OF FEDERAL COURTS 65-66 (4th ed. 1983). See
also K. DAVIS, ADMINISTRATIVE LAW TREATISE § 22.04 (1958).
n45. Chayes, supra note 28, at 15-16. In his latest article on standing,
Professor Nichol concludes that the injury prong of standing doctrine is
actually two different requirements: a requirement of injury-in-fact and a
requirement of legally cognizable interest (or legal injury). Nichol, Injury
and the Disintegration of Article III, 74 CAL. L. REV. 1915, 1918-19 (1986). As
I suggest below, particularly in Section V, this analysis misses the mark
because it ignores the cognitive processes implicated by terms such as
n46. 369 U.S. 186 (1962).
n47. "Talk of 'debasement' or 'dilution' is circular talk. One cannot
speak of 'debasement' or 'dilution' of the value of a vote until there is first
defined a standard of reference as to what a vote should be worth." Id. at 300
(Frankfurter, J., dissenting).
n48. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41 n.22
(1976) (citing Linda R. S., 410 U.S. at 617 n.3, and Trafficante v.
Metropolitan Life Ins. Co., 409 U.S. 205 (1972)).
n49. Freedom of Information Act, 5 U.S.C. § 552 (1982).
n50. Cf. Warth v. Seldin, 422 U.S. 490, 501 (1975); Simon, 426 U.S. 26,
40-41 & n.22 (1976).
n51. 418 U.S. 166 (1974). The inconsistency between the Freedom of
Information Act and the holding in Richardson was raised in Justice Stewart's
dissent. Id. at 204-05.
n52. U.S. CONST. art. I, § 9, cl. 7, which provides: "No Money
shall be drawn from the Treasury, but in Consequence of Appropriations made by
Law; and a regular Statement and Account of the Receipts and Expenditures of
all public Money shall be published from time to time."
n53. Richardson, 418 U.S. at 177.
n54. Valley Forge Christian College v. Americans for Separation of
Church and State, 454 U.S. 464, 486 (1982) (emphasis in original).
n55. See, e.g., Valley Forge, 454 U.S. at 472; Gladstone Realtors v.
Village of Bellwood, 441 U.S. 91, 99 (1979).
n56. Valley Forge, 454 U.S. at 473.
n57. 412 U.S. 669, 678 (1972).
n58. Gladstone, 441 U.S. at 99.
n59. See, e.g., Doernberg, "We the People": John Locke, Collective
Constitutional Rights, and Standing to Challenge Government Action, 73 CAL. L.
REV. 52 (1985); Schnurer, supra note 12, at 588-92 (concluding that the
distinction between group and personal rights cannot reliably be made).
n60. SCRAP, 412 U.S. at 688.
n61. Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial
Reasoning, 23 YALE L.J. 16, 24 (1913) (footnote ommitted).
The use of the term standing "is an excellent illustration of the extent
to which uncritical use of words bedevils the law. A phrase begins life as a
literary expression; its felicity leads to its lazy repetition; and repetition
soon establishes it as a legal formula, undiscriminately used to express
different and sometimes contradictory ideas." Tiller v. Atlantic Coastline
R.R., 318 U.S. 54, 68 (1943) (Frankfurter, J., concurring) (referring to the
use of the term "assumption of risk"). Ironically, Justice Frankfurter
capitalized on just this process with respect to the term "standing." See text
accompanying notes 246-288 & 393-468 infra.
n62. To prevent confusion, I use quotes — "standing" — when I
refer to the metaphor and do not do so when I refer to the legal doctrine.
n63. See G. LAKOFF & M. JOHNSON, METAPHORS WE LIVE BY 14 (1980):
"[M]etaphorical orientations are not arbitrary. They have a basis in our
physical and cultural experience." Id. "[W]e feel that no metaphor can ever be
comprehended or even adequately represented independently of its experiential
basis." Id. at 19. (emphasis in original); cf. C. LEVI-STRAUSS, THE SAVAGE MIND
93 (1962) ("The mythical system and the modes of representation it employs
serve to establish homologies between natural and social conditions....").
The term "standing" may also have antecedents in the practice and
structure of the royal ensemble or political court — one's status at court
could be judged by how close one stood to the king; one's status was evident in
n64. G. LAKOFF, WOMEN, FIRE, AND DANGEROUS THINGS: WHAT CATEGORIES
REVEAL ABOUT THE MIND 113 (1987). Lakoff's use of the term "motivation" has
nothing to do with conscious intent. Rather, he uses the term to convey that,
as products of human imagination, metaphors, models and concepts are neither
arbitrary nor entirely predictable. The concept of motivation addresses what
"makes sense of" a system of thought; it does not provide "principles that
generate, or predict, the system." Id. at 96 (emphasis in original). See also
text accompanying notes 493-494 infra.
n65. Culombe v. Connecticut, 367 U.S. 568, 604 (1961) (Opinion of
n66. See, e.g., G. LAKOFF, supra note 64; M. JOHNSON, THE BODY IN THE
MIND: THE BODILY BASIS OF MEANING, IMAGINATION, AND REASON (1987); G. LAKOFF
& M. JOHNSON, supra note 63. The account of reasoning that follows diverges
sharply from traditional objectivist accounts, which view reasoning as
propositional and knowledge as correspondence with an objective reality. See G.
LAKOFF, supra note 64, at xi-xii. For a further discussion of the central role
of metaphor in thought see notes 676-730 infra and accompanying text. In a
forthcoming piece, I will discuss the relationship between the experientialist
epistemology that follows and standard philosophical accounts of reasoning and
knowledge. Winter, Transcendental Nonsense, Metaphoric Reasoning, and the
Cognitive Stakes for Law (manuscript in preparation on file with the Stanford
n67. See M. BLACK, MODELS AND METAPHORS: STUDIES IN LANGUAGE AND
A memorable metaphor has the power to bring two separate domains into
cognitive and emotional relation by using language directly appropriate to the
one as a lens for seeing the other; the implications, suggestions, and
supporting values entwined with the literal use of the metaphorical expression
enable us to see a new subject matter in a new way. The extended meanings that
result, the relations between initially disparate realms created, can neither
be antecedently predicted nor subsequently paraphrased in prose. We can comment
upon the metaphor, but the metaphor itself neither needs nor invites
explanation and paraphrase. Metaphorical thought is a distinctive mode of
achieving insight, not to be construed as an ornamental substitute for plain
Id. at 236-37 (emphasis in original).
n68. Max Black explained the function of metaphor by means of two
metaphors: A metaphor is a filter and A metaphor is a lens. Id. at 39-41.
n69. The word "metaphor" — itself a metaphor from physical
experience — is derived from the Greek words pherein, "to carry," and
meta, "over." T. HAWKES, METAPHOR 1 (1972).
n70. M. BLACK, supra note 67, at 236-37 (emphasis in original).
n71. See G. LAKOFF, supra note 64; M. JOHNSON, supra note 66. Lakoff's
and Johnson's works draw on an extensive body of empirical work in experimental
psychology, linguistics, and anthropology. See, e.g., G. LAKOFF, supra note 64,
at 22-50, 58-64, 91-113, 119-30, 313-17, 330-34, 416-17. An important part of
this work concerns the phenomenon of "prototype effects" discussed in the text.
See text accompanying notes 76-81 infra; see, e.g., Rosch, Natural Categories,
5 COGNITIVE PSYCHOLOGY 328 (1973); Rosch, Principles of Categorization in
COGNITION AND CATEGORIZATION 27-48 (1978); Rosch, Prototype Classification and
Logical Classification: The Two Systems, in NEW TRENDS IN CONCEPTUAL
REPRESENTATION: CHALLENGES TO PIAGET'S THEORY 73-86 (E. Scholnick ed. 1983).
Although the account of reasoning that follows may appear
oversimplified, this appearance is a necessary by-product of compression. In
fact, Lakoff provides a sophisticated and extensive account of the structure of
cognitive processes. For example, I have highlighted only the role of
image-schemata and metaphor in the construction of cognitive models. Lakoff,
however, identifies other kinds of cognitive models structured by means of
propositions, scenarios, and metonymies. G. LAKOFF, supra note 64, at 113-14.
He also describes in detail how it is that we construct and extend these
cognitive models. Id. at 281-92.
n72. Like any theory, this theory has antecedents. The concept of
schemata as mediations between sense experience and conceptualization derives
from Kant. See I. KANT, CRITIQUE OF PURE REASON A 138-41, B177-80 (N.K. Smith
trans. 1963). For a discussion of how the theory of schemata adumbrated in the
text is culled from but is somewhat different than Kant's, see M. JOHNSON,
supra note 66, at 23-24, 152-57. The nonobjectivist approach to categorization,
in which members of the same category have some features in common but no
essential criteria, owes much to Wittgenstein's concept of family resemblance.
See L. WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS 31-34 (G. Anscombe trans.
1953) (describing board games, Olympic games, and gaming with dice as "games"
that only bear a family resemblance to one another). The concept of an
idealized cognitive model as a basic structure of thought is influenced by
Hilary Putnam's concept of stereotypes. See Putnam, The Meaning of "Meaning,"
in 7 MINNESOTA STUDIES IN THE PHILOSOPHY OF SCIENCE 131 (K. Gunderson ed.
1975). A survey of the intellectual history of the movement from which
experientialist cognitive theory has developed is provided in H. GARDNER, THE
MIND'S NEW SCIENCE: A HISTORY OF THE COGNITIVE REVOLUTION (2d ed. 1987).
n73. The part-whole schema gives rise to metonymy: The use of one entity
or part to refer to another, as when one refers to a class as a lot of faces.
See G. LAKOFF, supra note 64, at 77-79; G. LAKOFF & M. JOHNSON, supra note
63, at 35-40; see also G. FAUCONNIER, MENTAL SPACES: ASPECTS OF MEANING
CONSTRUCTION IN NATURAL LANGUAGE 3-5 (1985).
n74. "Yes; it seems quite simple. But I doubt if we ever know why we do
things. The only really simple thing is to go straight for what you want and
grab it." G.B. SHAW, MAN AND SUPERMAN, ACT IV (1903) (Ann Whitefield).
n75. G. LAKOFF, supra note 64, at 275-80.
n76. See, e.g., id. at 330-34.
n77. Id. at 40-46.
n78. Id. at 74, 79-84. The idealized cognitive model discussed in the
text reflects the traditional conception of "mother" in a patriarchal culture.
This phenomenon illustrates the role that language plays in encoding and
preserving social practices. See note 96 infra. The underlying cognitive model
and the language will no doubt change as society moves towards real sexual
equality and the gender roles within and without the family change.
In the meantime, these assumptions exert a powerful influence on legal
thinking. Recently, Professor Minow discussed the effects such idealized
cognitive models and unstated social assumptions have on the many questions of
difference that the courts confront. Minow, The Supreme Court, 1986 Term —
Foreword: Justice Engendered, 101 HARV. L. REV. 10 (1987); see id. at 13-14, 44
(discussing Lakoff's description of "mother" as a radial category); id. at
31-57 (discussing the underlying assumptions in the law that obliterate
n79. See G. LAKOFF, supra note 64, at 84-85. A radial category is itself
structured in terms of the preconceptual center-periphery schema. Id. at
n80. Id. at 45 (emphasis in original) (citing Rosch, Cognitive Reference
Points, 7 COGNITIVE PSYCHOLOGY 532, 544-46 (1975)).
n81. The terminology used in this paragraph was worked out in
collaboration with George Lakoff.
n82. See M. BLACK, supra note 65, at 39-41. Donald Davidson rejects
Black's interactive view of metaphor. "No doubt metaphors ... do provide a kind
of lens or lattice, as Black says, through which we view the relevant
phenomena. The issue does not lie here but in the question of how the metaphor
is related to what it makes us see." Davidson, What Metaphors Mean, 5 CRITICAL
INQUIRY 31, 45 (Autumn 1978). Assessing the operation of metaphor from the
standpoint of a more mainstream semantics, Davidson concludes that it must act
outside the domain of objectivity and truth and, instead, in the domain of art
and subjectivity. In his view, "there is no test for metaphor that does not
call for taste." Id. at 31.
The work of Lakoff and Johnson, G. LAKOFF & M. JOHNSON, supra note
63; G. LAKOFF, supra note 64; M. JOHNSON, supra note 66, is inconsistent with
this approach. (For a discussion of the relationship of Davidson's view to the
work of Lakoff and Johnson, see M. JOHNSON, supra note 66, at 71-72.)
Lakoff and Johnson view human understanding as largely imaginative and
metaphoric. The substantial explanatory power of their work is revealed, for
example, in Black's use of the filter and lens metaphors to explain the concept
of metaphor. See M. BLACK, supra note 67, at 39-41. Another example is cited by
Black: "[A]nalogical procedure seems characteristic of much intellectual
enterprise. There is a deal of wisdom in the popular locution for 'what is its
nature?' namely: 'What's it like?'" M. BLACK, supra note 67, at 240 (quoting M.
H. ABRAMS, THE MIRROR AND THE LAMP 32 (1953) (emphasis in original)). See also
notes 676-730 and accompanying text.
n83. Berggren, The Use and Abuse of Metaphor, I, 16 REV. METAPHYSICS:
PHIL. Q. 236, 244-45 (1962-63) (emphasis in original).
n84. Cf. Sierra Club v. Morton, 405 U.S. 727, 741-42 (1972) (Douglas,
J., dissenting) (suggesting that inanimate objects should have standing, and
citing Stone, Should Trees Have Standing? — Toward Legal Rights for
Natural Objects, 45 S. CAL. L. REV. 450 (1972)).
n85. We understand prototypical causation in terms of an agent that is
the energy source, a subject that is the goal, and a transfer of energy from
agent to subject (usually by a set of controlled physical actions) effecting a
change. G. LAKOFF, supra note 64, at 54-55; G. LAKOFF & M. JOHNSON, supra
note 63, at 70-72. Causation is thus grounded in the same kind of preconceptual
source-path-goal experience as purposes.
Although typically absent from legal thinking, we frequently use
metaphors of kinship to express concepts of causation, as in the adage:
"Necessity is the mother of invention." For a discussion of the prevalence of
kinship metaphors in literature, see M. TURNER, DEATH IS THE MOTHER OF BEAUTY:
MIND, METAPHOR, CRITICISM (1987).
n86. The source of the term "cause of action" lies in these
source-path-goal metaphors. The plaintiff's proof of the causal
source-path-goal metaphor is the cause of the court's action: the remedial
order. Cf. J. VINING, supra note 27, at 15. The use of the source-path-goal
metaphor is also reflected in our description of the judicial event as a
proceeding. The "stuff" of such proceedings are legal rights: a word that
derives from the Latin rectus or "straight." For more on the metaphoric
implications of the notion of rights, see Winter, supra note 66.
n87. Sullivan v. O'Connor, 363 Mass. 579, 583, 296 N.E.2d 183, 187
(1973) (Kaplan, J.) (emphasis added); W. PROSSER, J. WADE & V. SCHWARTZ,
CASES AND MATERIALS ON TORTS 537 (7th ed. 1982) (Compensatory damages are
intended to "restore [the plaintiff] to the position he occupied before the
tort."); C. MCCORMICK, HANDBOOK ON THE LAW OF DAMAGES 560 (1935) ("damages for
a tort should place the injured person as nearly as possible in the condition
he would have occupied if the wrong had not occurred, and ... damages for
breach of contract should place the plaintiff in the position he would be in if
the contract had been fulfilled.").
n88. I part company from Albert, supra note 12, and Currie, supra note
12, because their focus and reliance on the concept of "cause of action" merely
recreates the private rights model. Albert, for example, notes that:
This doctrine of official accountability under the private law ...
worked well enough in the nineteenth century when litigation often involved
resisting official impositions on one's person or property.... It worked less
well in maintaining official accountability where claims to bonuses, pensions,
and public lands were involved. And it worked very badly in accommodating
nonstatutory review under the proliferation of spending and regulatory programs
in the twentieth century.
Albert, supra note 12, at 434 (footnotes omitted). But when Professor
Albert applies his "claim for relief" analysis to the problems of standing, he
concludes that "[p]ublic ... interests and claims are similar to private ones
long vindicated in judicial proceedings...." Id. at 474-75. Having recreated
the private rights model, he cannot explain why, as a practical matter, it has
failed to accommodate these public claims. The answer is, in my view, that to
stay within the private rights model of standing makes it difficult to escape
the individualist premise of the metaphor. Thus, Professor Albert would treat
most third-party standing cases as cases of derivative personal right. Id. at
In contrast, Professors Chayes and Stewart recognize the public
dimensions of the adjudicatory process that call for representational, Chayes,
supra note 28, at 24-26, or surrogate, Stewart, supra note 5, at 1742-44,
standing. Once we have freed standing doctrine from its mistaken historical and
individualistic premises, as I do in the sections below, we will be able more
fully to appreciate the value and necessity of the public dimensions of
adjudication. See notes 590-784 infra and accompanying text.
n89. See notes 27-29 supra and accompanying text.
n90. See Chayes, The Role of the Judge in Public Law Litigation, 89
HARV. L. REV. 1281, 1285 (1976) ("The basic conceptions governing legal
liability [in the late nineteenth century] were 'intention' and 'fault.'").
See, e.g., Personnel Admin. of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (equal
protection claim by women must show that "the decisionmaker ... selected or
reaffirmed a particular course of action at least in part 'because of,' not
merely 'in spite of,' its adverse effects"); Mt. Healthy City School Dist. v.
Doyle, 429 U.S. 274, 287 (1977) (employee who claims that he was dismissed
because of his exercise of first amendment rights must show "that this conduct
was a 'substantial factor' — or to put it in other words, a 'motivating
factor' in the Board's decision not to rehire him") (citing Village of
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 270-71 n.21
(1977)); Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976) (requiring proof
of scienter for claim of securities fraud under Rule 10b-5); Washington v.
Davis, 426 U.S. 229 (1976) (proof of intent necessary for claim of racial
discrimination under the equal protection clause); NLRB v. Great Dane Trailers,
Inc., 388 U.S. 26, 33 (1967) ("the finding of a violation normally turns on
whether the discriminatory conduct was motivated by an anti union purpose.").
See also Asahi Metal Indus. Co. v. Superior Court, U.S.
, 107 S. Ct. 1026, 1033 (1987) (plurality opinion)
(jurisdiction based on minimum contacts requires "an action of the defendant
purposefully directed toward the forum State.") (emphasis in original)).
n91. G. LAKOFF & M. JOHNSON, supra note 63, at 41-45, demonstrate
how even inconsistent metaphors may be coherent because they share mutual
entailments. (An entailment is an intuitive relationship such that, because A
and B are connected, whenever we take A to be the case we also take B to be the
case.) Mixed metaphors can be coherent when for metaphors A and C, A entails B
and C also entails B. Id. at 87-96. For Lakoff's discussion of motivation on
which my analysis of the coherence effect is based, see G. LAKOFF, supra note
64, at 346 ("Motivation is a central phenomenon in cognition. The reason is
this: It is easier to learn something that is motivated than something that is
arbitrary. It is also easier to remember and use motivated knowledge than
arbitrary knowledge." (emphasis in original)).
In one sense, all prototype effects are coherence effects. A prototype
is chosen as a best example of a category precisely because it fits (i.e., is
coherent with) the particular idealized cognitive model. I use the term
coherence effect, however, to highlight the ontological version of this
cognitive phenomenon that can be observed in more complex conceptual settings,
as in the case of converging cognitive models and radial categories involving
diverse and inconsistent schemata. See notes 205-245 infra and accompanying
n92. See Washington v. Davis, 426 U.S. at 245 ("we have difficulty
understanding how a law establishing a racially neutral qualification for
employment is nevertheless racially discriminatory and denies 'any person ...
equal protection of the laws' simply because a greater proportion of Negroes
fail...."). But cf. Rylands v. Fletcher, 1868, L.R., 3 H.L. 330, 338; D. DOBBS,
R. KEETON, & D. OWEN, PROSSER AND KEETON ON TORTS 610 (5th ed. 1984)
(discussing strict liability in tort).
n93. 474 U.S. 327, 330, (1986). A recent dissent by Justice O'Connor
provides an interesting example of the cognitive overlap of the
source-path-goal metaphors for intent and causation. In City of Springfield v.
Kibbe, U.S. , 107 S. Ct. 1114 (1987),
Justice O'Connor invoked this coherence effect in arguing that "the law has
been willing to trace more distant causation when there is a cognitive
component to the defendant's fault...." Id. at 1121 (O'Connor, White, Powell,
JJ., and Burger, C.J., dissenting).
n94. See text accompanying note 93 supra.
n95. In focusing on the "standing" metaphor, we see only what the
metaphor brings us to see. "[I]t is so hard to decide, even in the case of the
simplest metaphors, exactly what the content is supposed to be. The reason is
... that we imagine there is a content to be captured when all the while we are
in fact focusing on what the metaphor makes us notice." Davidson, supra, note
82, at 46.
n96. See P. BERGER & T. LUCKMANN, THE SOCIAL CONSTRUCTION OF REALITY
(1967): [T]he sum of linguistic objectifications pertaining to my occupation
constitutes [a] ... semantic field, which meaningfully orders ... the routine
events I encounter in my daily work. Within the semantic fields thus built up
it is possible for ... historical experience to be objectified, retained and
accumulated. The accumulation, of course, is selective, with the semantic
fields determining what will be retained and what "forgotten" of the total
experience of ... the society.
Id. at 41.
n97. See text accompanying notes 121-172, 184-198 & 218-245
n98. Cf. Valley Forge Christian College v. Americans United for
Separation of Church and State, 454 U.S. 464, 490 (1982) (Brennan, J.
dissenting) ("[T]his accounts for the phenomenon of opinions, such as the one
today, that tend merely to obfuscate, rather than inform, our understanding of
the meaning of rights under the law."); Simon v. Eastern Kentucky Welfare
Rights Org., 426 U.S. 26, 46 (1976) (Brennan, J., concurring in the judgment)
(referring to "[t]he Court's further obfuscation of the law of standing").
n99. Professor Stewart, for example, provides a good explanation of how
the zone of interest analysis in Association of Data Processing Serv. Orgs. v.
Camp, 397 U.S. 190 (1970), distorted the Court's analysis of the merits.
Stewart, supra note 5, at 1732-33. In Section V, I dissect several major
standing cases to demonstrate that this suppression of the merits entailments
of standing determinations is an inevitable consequence of standing
n100. This insight was prompted by two observations of Professor
More precisely stated, the question of standing ... is the question
whether the litigant has a sufficient personal interest in getting the relief
he seeks, or is a sufficiently appropriate representative of other interested
persons, to warrant giving him the relief, if he establishes the illegality
alleged — and, by the same token, to warrant recognizing him as entitled
to invoke the court's decision on the issue of illegality. So viewed, the
question becomes inextricably bound up with the whole law of rights and
remedies, does it not?
P. BATOR, P. MISHKIN, D. SHAPIRO & H. WECHSLER, supra note 21, at
156 (emphasis added). (This paragraph also appears in essentially the same form
in the original edition, H. HART & H. WECHSLER, supra note 21, at 174
(1953)). Subsequently, Professor Wechsler observed that:
Only when the standing law, decisional or statutory, provides a remedy
to vindicate the interest that demands protection against infringement of the
kind that is alleged, a law of remedies that ordinarily at least is framed in
reference to rights and wrongs in general, do the courts have any business
asking what the Constitution may require or forbid....
Wechsler, Towards Neutral Principles of Constitutional Law, 73 HARV.
L. REV. 1, 6 (1959). Professor Wechsler makes certain assumptions that, despite
my deep personal respect for him, I cannot share. He assumes a set of
principles governing standing — "a law of remedies that ordinarily at
least is framed in reference to rights and wrongs in general" —
generalizable across subject matter areas in a "neutral" way.
n101. See Monaghan, Constitutional Adjudication: The Who and the When,
82 YALE L.J. 1363 (1973).
n102. United States v. Richardson, 418 U.S. 166 (1974). Cf. Kelman,
Taking Takings Seriously: An Essay for Centrists, 74 CAL. L. REV. 1829, 1847-48
(1986) (reviewing R. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF
EMINENT DOMAIN (1985)) ("We recognize what rights we have simply by seeing what
remedies we are entitled to. Legal thought distorts our perception because we
... come to believe there can be no problem, no significant interest to
vindicate unless we can imagine how a legal right might vindicate it.").
n103. Professor Vining argues that our shared understanding of the
relevant social interests affects our ability to recognize the legal identity
of the individual as a proper claimant in court — that is, that the what
motivates the who. He gives as an example a litigant who favors an entirely
blue landscape suing to prevent the construction of a nearby red house. In
Vining's view the court would not reach the merits because of
the absence, to the court's eyes, of a "you" to be harmed; and what
prevents the court from seeing a "you," a person, is the absence of any public
value to define a class for which the individual voice might speak. To say "I
am an all-blue lover ..." does not have meaning until the love of blue ...
becomes ... widely enough shared to permit us to recognize it as a social
J. VINING, supra note 27, at 61. It is unclear, however, why Vining
thinks a court would dismiss for lack of standing and not on the merits for
failure to state a claim upon which relief can be granted. See FED. R. CIV. P.
n104. SIR WALTER SCOTT, GUY MANNERING 249 (1815).
n105. New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes,
n106. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 150
(1950) (Frankfurter, J., concurring) (quoting U.S. CONST., art. III).
n107. McGrath, 341 U.S. at 150.
n108. See, e.g., Justice Harlan's opinion in Glidden Co. v. Zdanok, 370
U.S. 530, 563 (1962) (plurality opinion) (quoting United Steelworkers v. United
States, 361 U.S. 39, 44, 60 (1959) (Frankfurter, J., concurring)); see also
Flast v. Cohen, 392 U.S. 83, 95-97 (1968) ("Federal judicial power is limited
to those disputes which confine federal courts to a role consistent with a
system of separated powers and which are traditionally thought to be capable of
resolution through the judicial process."); cf. Northern Pipeline Constr. Co.
v. Marathon Pipe Line Co., 458 U.S. 50, 90 (1982) (Rehnquist, J., concurring)
(Congress may not assign to non-article III judges state law actions for
"damages for breach of contract, misrepresentation and other counts which are
the stuff of the traditional actions at common law tried by the courts at
Westminster in 1789."). But see Valley Forge Christian College v. Americans
United for Separation of Church and State, 454 U.S. 464, 471 (1982) ("The
requirements of Art. III are not satisfied merely because a party requests a
court of the United States to declare its legal rights, and has couched that
request for forms of relief historically associated with courts of law in terms
that have a familiar ring to those trained in the legal process."). Note,
however, that the Court's statement in Valley Forge reflects the degree to
which current standing law is defined in opposition to the traditional
In Glidden, Justice Harlan noted that suits against the government fell
within that tradition:
Suits against the English sovereign by petition of liberate, monstrans
de droit, and other forms of action designed to gain redress against unlawful
action of the Crown had been developed over several centuries and were
well-established before the Revolution.... Similar provisions for judicial
remedies against themselves were made by the American States immediately after
Glidden, 370 U.S. at 563.
n109. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 819
(1824) (Marshall, C.J.); accord Weston v. Charleston, 27 U.S. (2 Pet.) 449
(1829) (Marshall, C.J.) (holding that appeal from denial of writ of prohibition
to restrain an allegedly unconstitutional tax was a "case" or "suit" and
therefore within the Court's jurisdiction).
n110. Osborn, 22 U.S. at 819.
n112. 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES
n113. In In re Pacific Ry. Comm'n, 32 F. 241 (C.C.N.D. Cal. 1887),
Justice Field summarized the law of justiciability — that is, the meaning
of "cases or controversies" — in precisely these terms, quoting from the
extrajudicial writings of Marshall and Story as well as from the cases. Id. at
n114. Muskrat v. United States, 219 U.S. 346, 356-58 (1911). Justice
Day's opinion for the Court relied on Pacific Ry. Comm'n, and on Marshall's
opinions in Osborn and Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821).
n115. Keller v. Potomac Elec. Co., 261 U.S. 428, 444 (1923) ("[T]he
jurisdiction of this Court and of the inferior courts of the United States
ordained and established by Congress under and by virtue of the third article
of the Constitution is limited to cases and controversies in such form that the
judicial power is capable of acting on them....").
n116. Tutun v. United States, 270 U.S. 568 (1926) (naturalization
petition). Justice Brandeis emphasized that it is the form, and not the
substance, that determines
[w]hether a proceeding which results in a grant is a judicial one.
[It] does not depend on the nature of the thing granted, but upon the nature of
the proceeding which Congress has provided for securing the grant.... Whenever
the law provides a remedy enforceable in the courts according to the regular
course of legal procedure, and that remedy is pursued, there arises a case
within the meaning of the Constitution, whether the subject of the litigation
be property or status.
Id. at 576-77.
n117. 3 W. BLACKSTONE, COMMENTARIES *115. See also id. at *109 ("For it
is the settled and invariable principle in the laws of England, that every
right when withheld must have a remedy and, every injury its proper redress.").
n118. Id. at *23 (emphasis in original).
n119. Marbury v. Madison, 5 U.S. (1 Cranch) 87, 102 (1803). Marshall
drew this dictum directly from the passages in Blackstone quoted in the text.
n120. See Bivens v. Six Unknown Agents, 403 U.S. 388, 400 n.3 (1971)
(Harlan, J., concurring) (citing Marbury and referring to the Framers'
"contemporary modes of jurisprudential thought which appeared to link 'rights'
and 'remedies' in a 1:1 correlation....").
n121. This dominance was so marked that Blackstone referred to "such
injuries or encroachments as may occur between the crown and the subject" as
cases in which the remedy "is generally of a peculiar and eccentrical nature."
3 W. BLACKSTONE, COMMENTARIES *115-16.
n122. Osborn v. United States Bank, 22 U.S. 738, 819 (1824).
n123. Also in this category was the writ of quo warranto. See Berger,
supra note 31, at 823. On the "justiciability" in early American law of writs
of prohibition, see Weston v. Charleston, 27 U.S. (2 Pet.) 449 (1829),
discussed in note 109 supra.
n124. S. A. DE SMITH, supra note 34, at 337-38; Rex v. Glamorganshire
Inhabitants, 1 Ld.Raym. 580 (1700) (The Cardiff Bridge case). "Local government
bore a judicial aspect.... It was assumed that the writs of certiorari and
prohibition, by which [local governments] were controlled in their capacity as
courts of summary jurisdiction, were equally appropriate devices for
superintending the exercise of their multifarious governmental functions." S.
A. DE SMITH, supra note 34, at 337-38.
n125. By contrast, the classic rhetoric of standing doctrine denies
access to plaintiffs who claim a "right, possessed by every citizen, to require
that the Government be administered according to law...." Fairchild v. Hughes,
258 U.S. 126, 129 (1922). Cf. Frothingham v. Mellon, 262 U.S. 447, 488 (1923)
(not sufficient that plaintiff "suffers in some indefinite way in common with
people generally"); Baker v. Carr, 369 U.S. 186, 286-87 (1962) (Frankfurter,
J., dissenting) ("the policies underlying the requirement of 'standing' [are]
that the litigant who would challenge official action must claim infringement
of an interest particular and personal to himself, as distinguished from a
cause of dissatisfaction with the general frame and functioning of government
— a complaint that the political institutions are awry."); United States
v. Richardson, 418 U.S. 166, 179 (1974) ("[T]he absence of any particular
individual or class to litigate these claims gives support to the argument that
the subject matter is committed to the surveillance of ... the political
n126. See 3 W. BLACKSTONE, COMMENTARIES *109.
n127. Id. The original writ of mandamus was a means by which the King
regulated or recovered certain of his tenancies. See T. BLOUNT, NOMO-LEXICON: A
LAW-DICTIONARY (1670) (facsimile ed. 1970).
n128. 3 W. BLACKSTONE, COMMENTARIES *111.
n129. See, e.g., Kendall v. United States ex rel. Stokes, 37 U.S. (12
Pet.) 524, 620 (1838) ("mandamus ... is a prerogative writ, and [is] grantable
when the public justice of the state is concerned").
n130. See notes 499-589 infra and accompanying text.
n131. Cf. 1 W. JOWITT, THE DICTIONARY OF ENGLISH LAW 977 (2d ed.
n132. See G. LAKOFF, supra note 64, at 273-74 (discussing the caste
system in India) ("Families (and other social organizations) are understood as
wholes with parts.... [S]ociety is conceived of as a body (the whole) with ...
parts ... structured metaphorically according to the configuration of the
body.... The general concept of structure itself is a metaphorical projection
of the CONFIGURATION aspect of PART-WHOLE structure.") A common example of a
metaphor motivated by the use of this cognitive model for society is the body
politic. See Munn v. Illinois, 94 U.S. 113, 124 (1877) ("'A body politic,' as
aptly defined in the preamble of the Constitution of Massachusetts, 'is a
social compact by which the whole people covenants with each citizen, and each
citizen with the whole people, that all shall be governed by certain laws for
the common good.'").
n133. Kendall, 37 U.S. at 620.
n134. "Stranger" is a term of art: "[I]n Law it hath a special
signification for him that is not privy, or party to an Act...." See T. BLOUNT,
supra note 127. In contrast, neither the terms "standing" nor "locus standii"
appear in Blount's seventeenth century legal dictionary.
n135. S. A. DE SMITH, supra note 34, at 367-70. According to de Smith,
the nineteenth century English practice varied with the nature of the
stranger's claim. Some claims brought by strangers "obliged [the court] to
allow the application," id. at 367 (citing Buggin v. Bennett (1767) 4 Burr.
2037), others were refused "unless he [the stranger] makes out a strong case,"
id. (citing Foster v. Foster & Berridge (1863) 32 L.J.Q.B. 312, 314). On
this point, de Smith characterizes the nineteenth century English cases as "a
fog that is not easily penetrated." Id.
Some of this confusion may be explained by the intermediate nature of
the public rights model embodied in these prerogative writs. See notes 205-245
infra and accompanying text. In any event, it is clear that, in the United
States, these writs were treated as quasi-equitable and therefore involving
discretion. See Union Pac. R.R. v. Hall, 91 U.S. 343, 356 (1875); United States
ex rel. Greathouse v. Dern, 289 U.S. 352, 359-60 (1933). In Hall, the Supreme
Court allowed a mandamus petition despite the argument that the petitioners had
failed to show any personal interest. See notes 168-172 infra and accompanying
n136. 37 HALSBURY'S LAWS OF ENGLAND PP230-231 (4th ed. 1982).
n137. Id. at P231 (footnotes omitted).
n138. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 150
(1950) (Frankfurter, J., concurring).
n139. 2 U.S. (2 Dall.) 409 (1792).
n140. Act of Mar. 23, 1792, ch. 11, § 2, 1 Stat. 243 (repealed
n141. Judiciary Act of 1789, ch. 20, § 35, 1 Stat. 73, 92.
n142. Randolph premised his argument on the English practice, which had
also characterized procedure in Virginia where he had also served as attorney
general. J. GOEBEL, JR., 1 HISTORY OF THE SUPREME COURT OF THE UNITED STATES
n143. Process Act of 1792, ch. 36, 1 Stat. 275.
n144. J. GOEBEL, JR., supra note 142, at 563 & n.49.
n145. Hayburn's Case, 2 U.S. at 409.
n146. Id. The action became moot after Congress passed a new pension
bill taking the circuit court out of the process. Id. at 409-10. Act of Feb.
28, 1793, ch. 17, 1 Stat. 324.
n147. Hayburn's Case 2 U.S. at 410 n.a. This view was expressed in an
opinion and two letters written by the Justices. These documents are described
in a footnote to Hayburn's Case. Hayburn's Case is further discussed in United
States v. Ferreira, 54 U.S. (13 How.) 39, 49-50 (1851).
n148. Today, the "standing" of the attorney general to enforce the law
is recognized when conferred by statute. See, e.g., 42 U.S.C. §§
1971, 1997, 2000 (1-5) (1982). Cf. United States v. Philadelphia, 644 F.2d 187
(3rd Cir. 1980) (absent statutory authorization, attorney general has no
authority to bring suit to prevent pattern and practice of constitutional
violations by police). At the turn of the century, however, the Court
recognized the attorney general's "standing." See In re Debs, 158 U.S. 564
(1895); Sanitary Dist. of Chicago v. United States, 266 U.S. 405, 425-26 (1925)
(Holmes, J.). Debs is discussed below in text accompanying notes 270-273
n149. Compare the characterization in P. BATOR, P. MISHKIN, D. SHAPIRO
& H. WECHSLER, supra note 21, at 90: "[T]he Attorney General reached in his
pocket and pulled out Mr. Hayburn as a client.... Who did the Attorney General
think were the parties before then?" Id. (emphasis added).
n150. 1 N.J.L. (1 Coke) 244 (1794). The suitors were "some of the
Inhabitants of ." Id. at 245 (blank in original). See also
Jaffe, supra note 5, at 1275-76.
n151. See note 127 supra.
n152. According to Coke, the jurisdiction of the King's Bench extended
to "errors and misdemeanors extrajudicial, tending to the breach of the peace
or oppression of the subjects, or raising of faction, controversy, debate, or
any other manner of misgovernment...." Middlesex, 1 N.J.L. at 249 (quoting 4
COKE'S INSTITUTES *71).
n153. Id. at 250 (quoting 2 W. HAWKINS, A TREATISE OF THE PLEAS OF THE
CROWN 7 (I. Curwood 8th ed. 1824)) (emphasis added).
n155. Id. at 252.
n156. Id. at 255 (reporter's note).
n157. 11 Ill. 202 (1849). This case involved state appropriations to a
county to pay for improvements in a navigable creek. Mr. Metz was appointed
commissioner to oversee the work. He drew three of four installments from the
appropriated funds. The county commissioners refused to authorize the final
payment, deciding to use that money for other purposes pursuant to a later
statute. Mr. Metz sued to require payment of the fourth installment to him for
disbursement. In the terms of the modern standing doctrine, Mr. Metz's standing
is that of a governmental officer attempting to execute the duties of his or
her office. See, e.g., Board of Educ. v. Allen, 392 U.S. 236, 241 n.5 (1968)
(dictum) (standing not challenged by appellees). For criticism of the Court's
recognition of standing in Allen, see P. BATOR, P. MISHKIN, D. SHAPIRO & H.
WECHSLER, supra note 21, at 182-83.
n158. See note 125 supra for the contrasting rhetoric of modern standing
n159. Metz, 11 Ill. at 207-08 (emphasis added). Accord Union Pac. R.R.
v. Hall, 91 U.S. 343, 355 (1875). The common law practice continued in the
state courts for some time. See, e.g., Bancroft v. Building Comm'r, 257 Mass.
82, 84-85, 153 N.E. 319 (1926).
n160. See, e.g., People ex rel. Case v. Collins, 19 Wend. 56, 65 (N.Y.
Sup. Ct. 1837) (mandamus); People ex rel. Blacksmith v. Tracy, 1 Denio. 617,
618 (N.Y. Sup. Ct. 1845) (general rule unless statute provides otherwise).
n161. Metz, 11 Ill. at 162.
n162. The difference between the representational and constituent models
is in the relationship between the litigant and the affected parties. In the
representational model, the litigant sues directly on behalf of an affected
party. In the constituent model, the litigant is, as a citizen, an affected
party. In this latter context "affected" does not connote concrete injury or
injury-in-fact as it does in modern standing doctrine.
n163. In People ex rel. Drake v. Regents of the Univ. of Mich., 4 Mich.
98 (1856), the Michigan Supreme Court declined to follow the New York and
Illinois mandamus practice. In the view of the Michigan court, these state
courts had deviated from the practice of the English courts, which "molded,"
"formed," and "transmitted" the common law. Id. at 103. See also Mississippi
& Mo. R.R. v. Ward, 67 U.S. (2 Black) 485, 492 (1863) (injunctive action
"to abate a public nuisance" described as similar to the former English action
"information in Chancery," in which a "private party sues rather as a public
prosecutor than on his own account; and unless he shows that he has sustained,
and is still sustaining, individual damage, he cannot be heard"). But cf. notes
134-137 supra and accompanying text. The account of English law given in the
Ward case was directly contradicted by the Supreme Court in Union Pacific R.R.
v. Hall, 91 U.S. 343, 355 (1875) (discussing Pennsylvania v. Wheeling &
Belmont Bridge Co., 54 U.S. (13 How.) 518 (1851) (The Wheeling Bridge Case
n164. Heffner v. Commonwealth ex rel. Kline, 28 Pa. 108, 112 (1857);
People ex rel. Drake v. Regents of the Univ. of Mich., 4 Mich. at 103 ("this is
a case in which the action of the attorney-general would have been proper and
necessary"); Sanger v. Commissioners of Kennebec, 25 Me. 291, 296 (1845); In re
Wellington, 33 Mass. (16 Pick.) 87, 105 (1834) (stating general rule); Cleary
v. Deliesseline, 12 S.C.L. (1 McCord) 35 (1821); see also State v.
Deliesseline, 12 S.C.L. (1 McCord) 52 (1821) (observing that cases brought by
the attorney general on information are of two kinds: ex-officio and those
filed at the request of an individual).
n165. In mandamus cases, private parties asserting their own rights
continued the English form, bringing suit in the name of the United States,
presumedly on the theory that the individual beneficiary was also vindicating
the public's right to lawful governmental action. See, e.g., Kendall v. United
States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838); United States ex rel.
McBride v. Schurz, 102 U.S. 378 (1880); Indiana ex rel. Anderson v. Brand, 30
U.S. 95 (1938) (mandamus in state courts). A similar practice developed in
habeas corpus. See, e.g., Louisiana ex rel. Francis v. Resweber, 329 U.S. 459
(1947) (habeas by state prisoner); United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) (habeas by excluded alien).
n166. Sometimes, the party brought suit on behalf of a relator who was
the real party in interest, such as the attorney general seeking quo warranto
or mandamus at the instigation of a citizen. See, e.g., State v. Deliesseline,
12 S.C.L. (1 McCord) 52 (1821); State ex inf. Barker v. Duncan, 265 Mo. 26,
34-36, 175 S.W. 940, 942 (1915).
n167. The most likely source of these misconceptions is Blackstone, who
discussed mandamus only in the context of private, injured parties. 3 W.
BLACKSTONE, COMMENTARIES *110-11. Dean Thomas Cooley, who annotated
Blackstone's discussion of mandamus, exacerbated the problem by citing only the
minority view cases. 2 COOLEY'S BLACKSTONE 935 n.1. Cooley and several state
courts, See notes 163-164 supra, relied on Wellington, 33 Mass. 87, for their
understanding of the appropriate relators in public rights mandamus
In Wellington, however, the court actually adjudicated a public rights
mandamus premised solely on third-party rights. Id. at 97-105. It questioned
the sufficiency of the plaintiffs' interest only at the close of the opinion.
It indicated substantial confusion on this point: "[A]lthough the proceedings
... are in some measure public proceedings, inasmuch as the ultimate object is
to acquire an easement for the public, yet by the course of the proceeding as
presented and regulated by statute, it assumes in some degree the form of a
private adversary suit." Id. at 105 (emphasis added). In the end, the court did
not resolve the personal interest question; it considered instead the risks to
third party interests. Id. at 105-06. Although Wellington did state the general
rule in terms of the minority rule, id. at 105, its action was inconsistent
with this statement. Id. at 105-06. Thus, Wellington provides weak evidence of
early nineteenth century practice in public rights cases, and is not an
antecedent of modern justiciability doctrine. See also text accompanying notes
Subsequent Massachusetts cases treated as open the question whether a
mandamus petitioner had to show a personal interest. E.g., Attorney General v.
Boston, 123 Mass. 460, 479 (1877). Ultimately, the Massachusetts courts held
that no such showing was necessary. Cox v. Segee, 206 Mass. 380, 381, 92 N.E.
620 (1910); Bancroft v. Building Comm'r, 257 Mass. 82, 85-86, 153 N.E. 319
n168. Jaffe, supra note 5, at 1275-82.
n169. 91 U.S. 343 (1875). The only reference to Hall in the literature
is in L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 468 n.44 (1965). It
appears as part of a string cite of cases supporting the public mandamus
n170. Id. at 355.
n171. Id. at 354.
n172. Act of Mar. 3, 1873, ch. 226, § 4, 17 Stat. 485, 509.
n173. Hall, 91 U.S. at 354 (citing The King v. Severn & Wye Ry. Co.,
2 Barn. & Ad. 646, in which "a private individual, without any allegation
of special injury to himself, obtained a rule upon the company to show cause
why a mandamus should not issue commanding them to lay down again and maintain
part of a railway which they had taken up").
n174. 5 U.S. (1 Cranch) 87 (1803).
n175. 11 U.S. (7 Cranch) 317 (1813).
n176. Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 73, 81-82,
(codified as amended at 28 U.S.C. § 1651 (1982)).
n177. 37 U.S. (12 Pet.) 364, 431-32 (1838).
n178. The power to issue a writ of mandamus in the courts of the United
States "is not exercised, as in England, by the king's bench, as having a
general supervising power over inferior courts ... [but rather] it is in a
special, modified manner, in which the writ of mandamus is to be used in this
court, and in the circuit courts...." Kendall, 37 U.S. at 434 (discussing the
notion that federal courts are courts of limited jurisdiction).
n179. Id. at 429.
n180. Id. at 432-33.
n181. Id. at 367-68.
n182. The statute that the Court read as adopting the common law of
Maryland was, at best, ambiguous on that point. See id. at 432; text
accompanying note 180 supra.
n183. Union Pac. R.R. v. Hall, 91 U.S. 343 (1875).
n184. Marvin v. Trout, 199 U.S. 212, 225 (1905). See W. HOLDSWORTH, 4 A
HISTORY OF ENGLISH LAW 356-57 (1925); Berger, supra note 31, at 825-26.
n185. 3 W. BLACKSTONE, COMMENTARIES *161 (emphasis in original).
n186. 9 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 240 (1926) (CITING 3
Henry VI c. 3).
n187. 2 W. BLACKSTONE, COMMENTARIES *437.
n188. Professor Berger devoted only one and one half pages to the
subject, noting Marvin v. Trout and the 1692 New York statute mentioned in the
text accompanying note 190 infra. Berger, supra note 31, at 826 & n.55.
n189. See, e.g., Beadleston v. Sprague, 6 Johns. 101, 102-03 (N.Y. Sup.
Ct. 1810) (informer's suit to enforce statute prohibiting sale of liquor
without a license); Rowe v. State, 2 S.C.L. (2 Bay) 565 (1804) (suit by
informer to recover his moiety, that is, his portion of fine to be collected by
sheriff where the original informer's action was brought for "killing a negro
by undue correction.").
n190. 1 THE COLONIAL LAWS OF NEW YORK 279, 281 (1894) (statute passed
September 10, 1692).
n191. See Fairbanks v. Town of Antrium, 2 N.H. 105, 106 (1819) (statute
of Feb. 9, 1791, authorizing a 10-pound penalty "to any person who may sue for
same"); see also Pike v. Madbury, 12 N.H. 262 (1841) (penalty must be paid in
United States currency).
The earliest "taxpayer's action" appears to be an 1807 New York statute
creating an informer's suit to compel town supervisors to fulfill their
obligation "to raise such sums of money as they are directed to raise and levy
by acts of the legislature." 1807 N.Y. Laws 43. This was the statute at issue
in Caswell, qui tam v. Allen, 10 Johns. 118 (N.Y. Sup. Ct. 1813). "[P]laintiff,
who sued as well for himself as for the people," sought a $ 250 penalty from
the supervisor of the Town of Scipio. Id.
In Dozier v. Williams, 47 Miss. 605 (1873), Dozier sued the clerk of the
probate court who, without the father's consent, had illegally performed the
marriage ceremony for Dozier's minor son. The suit was brought pursuant to a
Mississippi informers' statute that provided for a penalty of $ 1000.
Beadelston, supra note 189, and Dozier suggest a possible source of
another justiciability doctrine: the prohibition of friendly suits. See P.
BATOR, P. MISHKIN, D. SHAPIRO & H. WECHSLER, supra note 21, at 102-07;
United States v. Johnson, 319 U.S. 302, 305 (1943). Multiplicity of litigation
was a problem inherent in informers' suits. At common law, the statutory right
to recovery attached to the first plaintiff to file such a suit. All suits
filed thereafter were subject to dismissal. This rule gave rise to collusion
between defendants and friendly plaintiffs. Potential defendants sometimes
obtained their own informers to bring suit, who could discharge or remit the
statutory penalty and whose judgment could be used to bar all subsequent suits.
Several doctrines developed to prevent such collusion. See, e.g., 2 W.
BLACKSTONE, COMMENTARIES *437 (first informer loses priority if collusion
revealed); Dozier, 47 Miss. at 606 (subsequent plaintiffs can plead fraud or
coveture); Caswell, 10 Johns. at 118 (informer can only recover judgment,
cannot discharge debt).
n192. This informer's suit was directed against custom collectors who
failed to post fee and duty schedules or who overcharged individuals. Act of
July 31, 1789, ch. 5, § 29, 1 Stat. 29, 45. Federal jurisdiction over
these suits was conferred in the first Judiciary Act. Judiciary Act of 1789,
ch. 20, § 9, 1 Stat. 73, 76-77 (authorizing federal district court
jurisdiction "of all suits for penalties and forfeitures incurred, under the
laws of the United States"). 3 W. BLACKSTONE, COMMENTARIES *161.
n193. 3 W. BLACKSTONE, COMMENTARIES *161-62.
n194. Act of May 8, 1792, ch. 36, § 5, 1 Stat. 275, 277 (an act for
regulating processes in the courts of the United States). This provision was
subsequently codified at 28 U.S.C. § 823, but was deleted as obsolete in
the revision of 1948. In fact, this deletion was erroneous because there are
still informer statutes on the books. See, e.g., notes 197-198 infra.
n195. Act of Mar. 22, 1794, ch. 11, §§ 2, 4, 1 Stat. 347, 349
(an act to prohibit the carrying on of the slave trade from the United States
to any foreign place or country).
n196. See Act of June 30, 1834, ch. 161, § 27, 4 Stat. 729, 733
(codified as amended at 25 U.S.C. § 201 (1982)) (an act to regulate trade
and intercourse with the Indian tribes, and to preserve peace on the
frontiers); see also United States v. Stocking, 87 F. 857 (D. Mont. 1898)
(dealing with the Act of June 30, 1834).
n197. False Claims Amendments Act of 1986, Pub. L. No. 99-562, 100 Stat.
3153, 3155-57; Act of Sept. 13, 1982, Pub. L. No. 97-258, §§
3729-3730, 96 Stat. 877, 978 (1982) (codified as amended at 31 U.S.C.
§§ 3729-3730 (1982 & Supp. III 1985)) (providing for cause of
action brought by "a person" in the "name of the Government" against those
committing frauds or making false claims against the government). This statute
was first passed during the Civil War to control false claims by military
personnel. Act of Mar. 2, 1863, ch. 67, §§ 4, 6, 12 Stat. 696, 698
("An Act to prevent and punish Frauds upon the Government of the United
States"). It was amended in 1943, Act of Dec. 23, 1943, ch. 377, 57 Stat.
608-09, and more recently in 1982 and 1986.
n198. See, e.g., Act of Feb. 9, 1909, ch. 100, § 7, 35 Stat. 614 as
amended by Act of Jan. 17, 1914, ch. 9, 38 Stat. 275, 277, repealed by Pub. L.
No. 91-513, § 1101, 84 Stat. 1236, 1291 (1970) (informers' suits relating
to importation of certain drugs); Act of Oct. 19, 1888, ch. 1210, § 1, 25
Stat. 566, Act of Apr. 28, 1904, No. 34, 33 Stat. 591, Act of Mar. 4, 1913, ch.
141, § 3, 37 Stat. 737, all repealed by Act of June 27, 1952, ch. 477,
§ 403, 66 Stat. 163, 279 (informers' suits to enforce prohibitions on
importation of certain aliens); Act of July 4, 1864, ch. 249, § 9, 13
Stat. 390, 392, and Act of Feb. 28, 1871, ch. 100, § 48, 16 Stat. 440, 454
(informers' suits to regulate passenger travel on steamships and other
n199. See Adams, qui tam v. Woods, 6 U.S. (2 Cranch) 336 (1805).
n200. Authorization of informers' suits made sense when the victim was
unaware of the overcharge or the failure to post the schedule. No doubt the
victim could also sue if he or she were aware of the illegality. Yet, the lack
of awareness by the victim was not a precondition to the informer's suit. For a
discussion of the metaphors that make information a particularly good candidate
as a link schema, see text accompanying notes 699-700 infra.
n201. 6 U.S. (2 Cranch) 336 (1805) (concerning a suit brought under the
Act of Mar. 22, 1794, ch. 11, §§ 2, 4, 1 Stat. 347, regulating the
n202. Id. at 341.
n203. The Laura, 114 U.S. 411 (1885); Marvin v. Trout, 199 U.S. 212
(1905); United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943).
n204. Flast, 92 U.S. 83, 121 (1968).
n205. Chayes, The Role of the Judge in Public Law Litigation, 89 HARV.
L. REV. 1281 (1976).
n206. Thus, the traditional model has two opposing parties or interests,
it is focused on a limited set of completed events, the court's involvement
ends with a decree whose direct impact is limited to the parties, the parties
shape the issues and marshall proof while the judge serves as the neutral
arbiter of the law, and the scope of the relief is logically deducted from the
substantive violation. Id. at 1282-83.
n207. Id. at 1302-03.
n208. Id. at 1282.
n209. As discussed in Section II, the private rights model consists of
two mirror image source-path-goal metaphors: One structures our understanding
of the causal behavior of the defendant that is the subject of the suit; the
other structures the remedial or adjudicative process. The public rights
models, too, used a mirror image structure. In the constituent model, like
mandamus, the remedial part-whole schema mirrored its substantive part-whole
schema. Thus, any citizen, or part, could sue and ask the court, acting for the
whole, to order the governmental agent, another part, to comply with the law,
as decided by the whole. The representational models were more complex.
Sometimes, as in Hayburn's Case, the remedy mirrored the causal
source-path-goal schema of the subject's private cause of action. Other times,
as in the informers' actions, it was specified by the statute that also
specified the right and authorized the link.
n210. Compare Chayes, supra note 205, at 1283.
n211. See G. LAKOFF & M. JOHNSON, supra note 63, at 61-62.
n212. Id. at 63.
This metaphor allows us to conceptualize what a rational argument is in
terms of something that we understand more readily, namely, physical conflict.
Fighting is found everywhere in the animal kingdom and nowhere so much as among
human animals. Animals fight to get what they want — food, sex, territory,
control, etc.... The same is true of human animals.... Part of being a rational
animal ... involves getting what you want without subjecting yourself to the
dangers of actual physical conflict. As a result, we humans evolved the social
institution of verbal argument. We have arguments all the time in order to get
what we want, and sometimes these "degenerate" into physical violence.
Id. at 61-62. For a poetic variant of this conventional metaphor, see E.
Costello, You'll Never Be a Man, in TRUST (Columbia Records 1981) ("You need
protection from the physical part of conversation/though the fist is mightier
than the lip it adds the aggravation").
n213. G. LAKOFF & M. JOHNSON, supra note 63, at 65. ("Whether we are
in a scientific, academic, or legal setting, aspiring to the ideal of rational
argument, or whether we are just trying to get our way in our own household by
haggling, the way we conceive of, carry out, and describe our arguments is
grounded in the ARGUMENT IS WAR metaphor.") (capitalization in original).
n214. Chayes, supra note 205, at 1282.
n215. See, for example, the biblical report of the fight between David
and Goliath, an ancient instance of this practice. 1 Samuel 17:1-9.
n216. See J. VINING, supra note 27, at 52-53.
By experience and attitude, as well as by virtue of their special
procedures, courts have always been in a position to look continuously at the
whole. As other institutions that also shared the priestly tradition have
disappeared, the importance of this aspect of the notion of what it is to be a
judge has grown. No society pursuing a multitude of public values of different
weight through a multitude of largely independent agencies has ever tried to do
without such central coordination.... The process of perceiving, announcing,
reconciling, and choosing between the values at stake in particular situations
— the judicial process — ... is an integral part of the government.
And there is nothing mystical about the function. It consists simply in seeing
all the considerations, the implicit as well as the fully articulated, ... and
in seeing all decision makers making use of public force as subject to
constraints originating outside as well as within themselves.
Id. at 52-53 (emphasis and footnotes deleted).
n217. 3 W. BLACKSTONE, COMMENTARIES *115-16.
n218. See Munn v. Illinois, 94 U.S. 113, 126 (1877) (grain warehouse is
subject to regulation because "[p]roperty does become clothed with a public
interest when used in a manner to make it of public consequence, and affect the
community at large"). In colonial times, judicial regulation of public rights
matters was much more extensive than has been supposed. For example, the
colonial courts of Virginia not only licensed all innkeepers, but also set all
prices. H. WILLIAMS, LEGENDS OF LOUDOUN: AN ACCOUNT OF THE HISTORY AND HOMES OF
A BORDER COUNTY OF VIRGINIA'S NORTHERN NECK 104-06 (1938). Massachusetts courts
also licensed all innkeepers until the beginning of the nineteenth century.
Hartog, The Public Law of a County Court; Judicial Government in Eighteenth
Century Massachusetts, 20 AM. J. LEGAL HIST. 282, 288-91 (1976). Despite this
accepted colonial practice, the twentieth century Supreme Court held that rate
setting was not a "case or controversy" within the jurisdiction of the federal
courts. Keller v. Potomac Elec. Co., 261 U.S. 428, 444 (1923).
n219. See, e.g., In re Wellington, 33 Mass. (16 Pick.) 87 (1834).
n220. See, e.g., County Commr's v. People ex rel. Metz, 11 Ill. 202
(1849); Pennsylvania v. Wheeling & Belmont Bridge Co. 54 U.S. (13 How.) 518
n221. Union Pac. R.R. v. Hall, 91 U.S. 343 (1875).
n222. See, e.g., Beadleston v. Sprague, 6 Johns. 101 (N.Y. 1810)
n223. See, e.g., Act of July 31, 1789, ch. 5, § 29, 1 Stat. 29, 45
n224. See Marbury v. Madison, 5 U.S. (1 Cranch) 87, 105, 107 (1803)
("The province of the court is, solely, to decide on the rights of individuals,
not to inquire how the executive, or executive officers, perform duties in
which they have a discretion. Questions in their nature political ... can never
be made in this court."); Gaines v. Thompson, 74 U.S. (7 Wall.) 347, 352 (1868)
("there exists no power in the courts, by any of its processes, to act upon the
officer ... [where] the law reposes this discretion in him for that occasion,
and not in the courts.").
n225. The dictum in Marbury, referring to this limit on the reach of
mandamus to compel discretionary public acts, formed the basis of the later
political question doctrine.
n226. See Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18
How.) 421, 431-32 (1855) (public nuisance suit failed because of Act of
Congress) (The Wheeling Case III; Hodges v. Snyder, 261 U.S. 600, 603-04 (1923)
(taxpayer suit against consolidation of school districts failed because of
subsequent legislation); cf. United States v. The Schooner Peggy, 5 U.S. (1
Cranch) 64, 68-69 (1801) (public nature of suit invoked to justify application
of subsequent treaty to reverse judgment that was correct when rendered).
This intermediate legal status was also reflected in informer actions:
The executive often had the power to remit the statutory penalty claimed by the
informer at any time prior to judgment in the informer's suit. See The Laura,
114 U.S. 411, 414-17 (1885).
n227. See Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S.
(18 How.) 272, 284 (1855). Murray's Lessee is discussed at length below. See
notes 233-236 infra and accompanying text.
n228. 1 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 419, 493-94
(1883); 3 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 621 (5th ed. 1942); 15 W.
HOLDSWORTH, A HISTORY OF ENGLISH LAW 160 (1965) (private enforcement of
criminal law until 1859); Hay, Property, Authority and the Criminal Law, in D.
HAY, P. LINEBAUGH, J. RULE, E. THOMPSON, & C. WINSLOW, ALBION'S FATAL TREE:
CRIME AND SOCIETY IN EIGHTEENTH CENTURY ENGLAND 40-41 (1975).
n229. See De Smith, supra note 34, at 337-38; note 124 supra.
n230. See note 218 supra.
n231. See cases cited in note 164 supra.
n232. "Real historical understanding is not achieved by the
subordination of the past to the present, but rather by our making the past our
present and attempting to see life with the eyes of another century than our
own." H. BUTTERFIELD, THE WHIG INTERPRETATION OF HISTORY 16 (1963). See also
Gordon, Historicism in Legal Scholarship, YALE L.J. 1017, 1021, 1045-50 (1981).
n233. 59 U.S. (18 How.) 272 (1855). [W]e do not consider congress can
either withdraw from judicial cognizance any matter which, from its nature, is
the subject of a suit at the common law, or in equity, or admiralty; nor, on
the other hand, can it bring under the judicial power a matter which, from its
nature, is not a subject for judicial determination. At the same time there are
matters, involving public rights, which may be presented in such form that the
judicial power is capable of acting on them, and which are susceptible of
judicial determination, but which congress may or may not bring within the
cognizance of the courts of the United States, as it may deem proper. Id. at
284 (emphasis added). In light of the preceding historical material, the reader
will note that this famous passage is not a reference to article I Tribunals,
but rather an invocation of the syllogism of the forms to assert that public
rights matters are justiciable at Congress' discretion.
n234. This reading is common to the modern Supreme Court opinions in
this area, such as Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 106
S. Ct. 3245, 3258 (1986), Northern Pipeline Construction Corp. v. Marathon Pipe
Line Co., 458 U.S. 50 (1982) (plurality opinion), Crowell v. Benson, 285 U.S.
22, 48-50 (1932), and Ex parte Bakelite, 279 U.S. 438, 451 (1929). Examples of
recent scholarship that perpetuate this misreading include Fallon, Of
Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV.
916, 951-54 (1988), and Young, Public Rights and the Federal Judicial Power:
From Murray's Lessee Through Crowell to Schor 35 BUFF. L. REV. 765, 789-99
n235. Murray's Lessee, 59 U.S. (18 How.) at 283.
n236. A further indication that the modern reading of Murray's Lessee is
mistaken is that courts typically take the case out of context. In Murray's
Lessee, the question was the constitutionality under the due process clause of
a summary, extrajudicial procedure for the recovery by the United States of
money due from a customs collector. Murray's Lessee, 59 U.S. (18 How.) at
275-77. Traditionally, the issuance of this summary distraint warrant has been
characterized as analogous to a judicial action by an article I legislative
court. But, as the passage cited above (see text accompanying note 235 supra)
indicates, Murray's Lessee viewed the summary distraint warrant not as a
judicial act by an article I court, but rather as an extrajudicial,
governmental self help remedy. In this context, the famous passage in Murray's
Lessee (see note 234 supra) is a frank statement that Congress has the power to
authorize extrajudicial self help remedies in public rights cases.
Moreover, the modern Justices who, since Ex parte Bakelite have read
Murray's Lessee as a case about the power of Congress to create article I
courts have always been unable to define Murray's Lessee's use of the term
"public rights." For example, in Northern Pipeline, Justice Brennan admitted
that "[t]he distinction between public rights and private rights has not been
definitively explained in our precedents." 458 U.S. at 69. Because the original
nineteenth century concept of public rights had been lost, Justice Brennan was
forced to employ (anachronistically) modern concepts to recharacterize the
unfamiliar: "[A] matter of public rights must at a minimum arise 'between the
government and others.'" Id. (quoting Bakelite, 279 U.S. at 451). Justice
Brennan further misidentified the concept of public rights with that of
sovereign immunity. Id. at 67. Exactly these same misconceptions plague modern
commentators who attempt to define the meaning of the term "public rights" as
used in Murray's Lessee. See Fallon, note 234 supra; Young, note 234 supra.
As we have seen, the nineteenth century concept of public rights had
nothing to do with these notions. This new historical information provides a
larger doctrinal context that requires a revision of our understanding of this
important nineteenth century precedent.
n237. Marbury, 5 U.S. (1 Cranch) 87 (1803). For versions of the
traditional analysis that trace the private rights model for constitutional
adjudication to Marbury, see Monaghan, supra note 29, at 1365-68; Chayes, supra
note 205, at 1285.
n238. Marshall inquired whether Mr. Marbury had a right to his
commission, whether the laws afforded him a remedy, and, if so, whether it "is
... a mandamus issuing from this court[.]" 5 U.S. at 97-98. After ascertaining
Marbury's legal right to his commission, Marshall then discussed the
relationship between the principles of ubi jus, ibi remedium and what we
commonly call "the rule of law." Id. at 102-05. The answer to the final
question quoted above turned, in part, on "[t]he nature of the writ." Id. at
106. Marshall then discussed the scope of mandamus to command actions by
executive officers. Id. at 106-09.
n239. "The decision was criticized for its dictum that the executive
could be called to account by judicial process...." R. MCCLOSKEY, THE AMERICAN
SUPREME COURT 43 (1960) (emphasis in original). "Indeed this was regarded at
the time as the more critical issue...." Van Alstyne, A Critical Guide to
Marbury v. Madison, 1969 DUKE L.J. 1, 11. "Jefferson insisted until the end of
his life that most of the opinion was 'merely an obiter dissertation of the
Chief Justice.'" G. GUNTHER, supra, note 21, at 12 (quoting a letter from
Jefferson to Justice William Johnson dated June 12, 1823). This comment
suggests that the irksome aspect of the Marbury opinion was not the direct
holding concerning judicial review, but rather the dicta concerning mandamus.
See also L. TRIBE, AMERICAN CONSTITUTIONAL LAW 22 (1978) ("In the context of
the time, ... Marbury represented no novel seizure of power; indeed, the
records of the Constitutional Convention itself suggest to at least some
scholars that the Framers ... took th[e] power [of judicial review] for
n240. See Marbury, 5 U.S. at 109-12.
n241. See 5 U.S. at 105, 107.
n242. See note 159 supra and accompanying text.
n243. Albert, supra note 12, at 434; Stewart, supra note 5, at 1717-25;
Chayes, supra note 28, at 9-10. The classic treatment of this phenomenon is
Reich, The New Property, 73 YALE L.J. 733 (1964).
n244. See, e.g., Stewart, supra note 5, at 1721-22 (due process and
standing); Chayes, supra note 28, at 10.
n245. Chayes, supra note 28, at 10.
n246. W. STEVENS, Adagia, in OPUS POSTHUMOUS, 157, 169 (1957).
n247. 25 U.S. (12 Wheat.) 594 (1827).
n248. Id. at 596.
n249. 37 U.S. (12 Pet.) 264 (1838).
n250. Id. at 296. Justice Story used the "standing" metaphor in a
similar way in a patent case, Evans v. Eaton, 20 U.S. 161, 7 Wheat. 356 (1822),
concerning whether a user of a potentially infringing device manufactured by
the defendant (arguably an interested party) was competent as a witness. Story
described the witness as "standing in the same predicament with the party
sued...." Evans, 20 U.S. at 192, 7 Wheat at 425. Story expressed his conclusion
that the witness was competent to testify using terms that sound like modern
But in this respect, Frederick stands in the same situation as every
other person in the community. If the patent is declared void, the invention
may be used by the whole community.... It, therefore, rests in remote
contingencies, whether Frederick will, under any circumstances, have an
interest in the event of this suit, and the law adjudges the party incompetent,
only when he has a certain, and not a contingent interest.
Id. at 192, 7 Wheat. at 425-26.
n251. See, e.g., De la Croix v. Chamberlain, 25 U.S. 378 (12 Wheat.) 599
(1827); Menard's Heirs v. Massey, 49 U.S. (8 How.) 302 (1850).
n252. Les Bois, 45 U.S. (4 How.) 502, 517 (1846). See also Goodtitle v.
Kibbe, 50 U.S. (9 How.) 471, 477 (1850) (argument by counsel, citing De la
Croix, that "such paper can give the party no standing in the court....");
Menard's Heirs, 49 U.S. at 316 ("No standing, therefore, in an ordinary
judicial tribunal has ever been allowed to these claims, until Congress has
confirmed them and vested the legal title in the claimant."). Three years
later, the Court used the term "standing in court" in the same sense in Guitard
v. Stoddard, 57 U.S. (16 How.) 524, 540-41 (1853).
n253. 89 U.S. (22 Wall.) 67 (1874).
n254. If adjudicated today, the Court might have held that Mr. Ritchie's
status as a taxpayer didn't confer standing. See Doremus v. Board of Educ., 342
U.S. 429, 434 (1952) (state courts may confer broader taxpayer standing, but
case dismissed by United States Supreme Court as presenting no case or
controversy because it was not a "good-faith pocketbook action"). The more
serious article III problem in Ritchie was that the case did not appear to
present a federal question nor to involve diversity of citizenship.
n255. Ritchie, 89 U.S. at 77.
n256. In a contemporaneous nonequity case consolidating the Elgee Cotton
Cases, 89 U.S. (22 Wall.) 180 (1874), the Court used the term "standing" in a
similar manner. Under the Captured and Abandoned Property Act, one could sue in
the court of claims to recover for property seized by Union troops during the
Civil War only if one could show: ownership, a present right to the proceeds,
and loyalty during the war. Act of Mar. 12, 1863, 12 Stat. 820, § 3. The
plaintiffs in The Elgee Cotton Cases claimed that, under various contracts,
they were entitled to the proceeds of cotton that had been seized in
Mississippi during the Vicksburg campaign. The Court rejected their claim: "It
is the owner alone who has any standing in the Court of Claims under the
Captured and Abandoned Property Act...." 89 U.S. at 185.
Here, the metaphor of "standing" is invoked not to say that the
plaintiffs could not sue because they had suffered no injury but to convey that
the plaintiffs had no capacity to sue because, on the merits, they had no
rights. "[T]he rights defined are the only ones which can be enforced in any
judicial proceeding. The language of the act makes it plain that no one is
allowed to sue in the Court of Claims for the proceeds ... unless he can prove
[ownership] to the satisfaction of the court...." Id. at 186. At the outset of
the opinion, the Court noted that "in the view which we take of the merits of
the controversy it is unnecessary to do more than examine the contracts
themselves...." Id. at 185 (emphasis added). This was, therefore, a ruling on
the merits, rather than about standing in the modern sense.
n257. 36 U.S. (11 Peters) 351, 414 (1837) (Baldwin, J., dissenting).
n258. 73 U.S. (6 Wall.) 50 (1867).
n259. 30 U.S. (5 Pet.) 1 (1831).
n260. Stanton, 73 U.S. at 74.
n261. 37 U.S. (12 Pet.) 91 (1838).
n262. Id. at 99.
n263. Id. at 97 ("the ordinary and regular proceeding at law is by
indictment or information ...").
n264. Id. at 98. The Court observed that "[t]his jurisdiction seems to
have been acted on with great caution and hesitancy." Id.
n265. Id. at 98-99. Georgetown's account of equity law does not, of
course, include other developments such as the relator practice and the
resurgence of equity later in the nineteenth century. Thus, in Union Pac. R.R.
Co. v. Hall, the Court pointed out that equity did allow a private suit to
abate a public nuisance where the harm was common to all and particularly
injurious to the plaintiff. 91 U.S. 343, 355 (1875).
n263. Id. at 97 ("the ordinary and regular proceeding at law is by
indictment or information ...").
n264. Id. at 98. The Court observed that "[t]his jurisdiction seems to
have been acted on with great caution and hesitancy." Id.
n265. Id. at 98-99. Georgetown's account of equity law does not, of
course, include other developments such as the relator practice and the
resurgence of equity later in the nineteenth century. Thus, in Union Pac. R.R.
Co. v. Hall, the Court pointed out that equity did allow a private suit to
abate a public nuisance where the harm was common to all and particularly
injurious to the plaintiff. 91 U.S. 343, 355 (1875).
n266. 37 U.S. at 99-100.
n267. See Heffner v. Commonwealth ex. rel. Kline, 28 Pa. 108, 113-14
(1857); Sanger v. County of Comm'rs 25 Me. 291, 296 (1845); Cleary v.
Deliesseline, 12 S.C.L. (1 McCord) 14 (1820); State v. Deliesseline, 12 S.C.L.
(2 McCord) 21 (1821) for statement of the minority rule that only state
officers such as the attorney general or district attorney could seek a writ of
mandamus in a public rights case.
n268. The word "corporate" comes from the Latin corporatus meaning
"formed into a body."
n269. Hall cited Wheeling Bridge II as an American illustration of
equity's general power to enjoin a public nuisance without the necessity of a
claim of private right. 91 U.S. at 355. Wheeling Bridge II itself was
ambivalent on this score. Although it discussed and explicitly relied on
Georgetown, it also cited Bacon's Abridgement for the proposition that "[a]ny
individual may abate a public nuisance." 54 U.S. (13 How.) at 566; see also
Murray's Lessee, 59 U.S. (18 How.) 272, 283 (1855). Ultimately, it relied on
Pennsylvania's special injury of the decrease in toll revenues on the canals
that fed into the Ohio, which would have resulted if the nuisance had not been
abated. Id. at 561-62. The Court in Hall reasoned that "[t]he injury ... was no
more peculiar to Pennsylvania than is the injury to Hall." 91 U.S. at 355.
Regardless of whether the Court in Hall read Wheeling Bridge II correctly,
Wheeling Bridge, like Georgetown, dealt with these questions solely as a matter
of the jurisdictional divide between law and equity. Wheeling Bridge II, 54
U.S. at 562-66. Wheeling Bridge II, however, used neither the term "standing"
nor a variant.
n270. 158 U.S. 564 (1895).
n271. Id. at 577 (emphasis added).
n272. Id. at 583.
n273. Id. at 584.
n274. See, e.g., J. POMEROY & S. SYMONS, 1 EQUITY JURISPRUDENCE
§ 91, §§ 101-02 (5th ed. 1941). See note 280 infra.
n275. Baltimore & O.R.R. v. United States, 264 U.S. 258 (1924).
n276. Id. at 266.
n278. Id. at 267.
n279. Id. at 271.
n280. For a standing as party plaintiff it is necessary, not only that
plaintiff have a legal entity or existence, and that he be possessed of legal
capacity to sue, but also that this person have, in the cause of action
asserted, a remedial interest which the law of the forum can recognize and
47 C.J.S. § 30 (1929) (footnotes omitted); Langdell, Classification
of Rights and Wrongs II, 13 HARV. L. REV. 659 (1900).
The cases in which equity assumes jurisdiction over controversies
between litigants may be divided into two great classes.... In the first class
of cases, the ground upon which equity takes jurisdiction is that the plaintiff
either can obtain no relief at all at law, or none which is adequate; and,
therefore, so far as regards this class of cases, equity consists merely in a
different mode of giving relief from that employed by courts of common law,
i.e., in a different mode of protecting and enforcing legal rights....
The other class of cases ... may be divided into those in which the
plaintiff sets up no legal right whatever, and those in which the only legal
right he sets up is a defence to some legal claim which the defendant makes
against him. In cases belonging to the first subdivision, equity interferes
upon the ground that the substantive law (and not merely the remedial law) is
inadequate to the purposes of justice. In cases belonging to the second
subdivision, equity interferes upon the ground that justice requires that the
plaintiff should be permitted to take the initiative in the litigation, and
procure a decision of the controversy in a suit brought by himself, instead of
being compelled to wait the pleasure of the defendant in suing him at law, and
then to set up his defence. In one important particular, however, cases
belonging to these two subdivisions are alike, namely, in the necessity in
which they impose upon equity of creating a new right in the plaintiff's favor;
for no action or suit can be maintained in any court without some right upon
which to found it.
Id. at 672 (emphasis added).
n281. Baltimore and O.R.R. Co. v. United States, 264 U.S. 258, 272
(1924). (Sutherland, J., dissenting).
A private injury for which the law affords no remedy cannot be converted
into a remediable injury, merely because it results from an act of which the
public might complain. In other words, the law will afford redress to a
litigant only for injuries which invade his own legal rights; and since the
injuries here complained of are not of that character and do not result from
the violation of any obligation owing to the complainants, it follows that they
are without legal standing to sue.
Id. at 272-73 (emphasis added). Justice Sutherland rejected the
majority's characterization of the legal interest on the ground that the bill
relied only on the theory of harm to the plaintiffs' interests as competitors,
not on a theory of inequality of treatment. Id. at 273-74.
n282. Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 341 (1936)
(Brandeis, J., concurring).
n283. Id. at 341 (Brandeis, J., concurring). In the very first drafts of
this concurring opinion Justice Brandeis stated that
[t]he plaintiffs have no standing to require the Court to decide the
Constitutional question. This objection is not procedural. The plaintiffs have
complied with the formal requirements of a stockholders' suit prescribed by
Equity Rule 27. Their lack of standing to require a decision of the
Constitutional question is due to the absence, on the findings, of a
substantive right to interfere with the internal management of the
THE LOUIS DEMBITZ BRANDEIS PAPERS, Box 96, Folders 1-7 (Library of
Congress microfilm series, Part II: United States Supreme Court October Terms
1932-1938, Reel 16, # 0447).
n284. Discussing the first obstacle, the substantive law, Justice
Brandeis observed that "[t]he fact that the bill calls for an enquiry into the
legality of the transaction does not overcome the obstacle that ordinarily
stockholders have no standing to interfere with the management." Ashwander, 297
U.S. at 343. Discussing the second obstacle, the equity practice, Justice
Brandeis began: "Even where property rights of stockholders are alleged to be
violated by the management, stockholders seeking an injunction must bear the
burden of showing danger of irreparable injury, as do others who seek that
equitable relief." Id. at 344-45.
n285. Id. at 346.
n286. See, e.g., Ritchie v. Franklin County, 89 U.S. (22 Wall.) 67, 77
(1875); Florida v. Anderson, 91 U.S. 667, 675 (1876).
n287. J. POMEROY & S. SYMONS, 1 EQUITY JURISPRUDENCE § 131 (5th
ed. 1941) (annotating Pomeroy's original works). Pomeroy's concern was that it
was "productive of much confusion in the discussion of equitable doctrines."
n288. 272 U.S. 525, 528 (1926) (Holmes, J.). In Benton, the Court
rejected a challenge to the adoption of Daylight Savings Time brought by
parties who "do not even allege any direct interest" and by another who raised
"matters that do not concern her." Id. at 528.
n289. General Inv. Co. v. New York Cent. R.R., 271 U.S. 228, 230-31
(1926) (citations omitted).
n290. See, e.g., Singleton v. Wulff, 428 U.S. 106 (1976); Tileston v.
Ullman, 318 U.S. 44 (1943).
n291. Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-48
n292. 9 U.S. (5 Cranch) 344 (1809). Owings is, in fact, miscited as the
first example of the jus tertii doctrine, as I explain in the text below.
Compare Owings, 9 U.S. at 348, with Tyler v. Judges of the Court of
Registration, 179 U.S. 395, 408 (1900). Tyler, however, provided a critical
link in the chain of development of the modern doctrine of standing. See text
accompanying notes 329-342 infra.
n293. Owings, 9 U.S. at 344.
n294. Id. at 347-48. At first blush, this reasoning appears inconsistent
with Justice Marshall's later holding concerning the "arising under"
jurisdiction in Osborn that "it be a sufficient foundation for jurisdiction,
that the title or right set up by the party, may be defeated by one
construction of the constitution or law of the United States, and sustained by
the opposite construction...." Osborn v. Bank of the United States, 22 U.S. (9
Wheat.) 738, 822 (1824). As explained below, however, the inconsistency is more
apparent than real.
n295. Owings, 9 U.S. at 348 (emphasis added).
n296. See G. HASKINS & H. JOHNSON, 2 HISTORY OF THE SUPREME COURT OF
THE UNITED STATES 511 n.43 (1981).
n297. The same issue arose in Henderson v. Tennessee, 51 U.S. (10 How.)
311 (1850). There the Court explained that:
[I]n the language of ejectment law, an outstanding title means a title
in a third person, under which the tenant in possession does not claim.... The
right to make this defence is not derived from the treaties, nor from any
authority exercised under the general government. It is given by the laws of
the State, which provide that the defendant in ejectment may set up title in a
stranger in bar of the action.
Id. at 323.
n298. Owings, 9 U.S. at 348.
n299. Chief Justice Marshall observed that:
[A]ll persons who have real claims under a treaty should have their
cause decided by the national tribunals. It was to avoid the apprehension as
well as the danger of state prejudices.... But if the person's title is not
affected by the treaty, if he claims nothing under a treaty, his title cannot
be protected by the treaty. If Scarth or his heirs had claimed, it would have
been a case arising under a treaty.
Owings, 9 U.S. at 348.
n300. Cf. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 678
(1950) ("language in the contract may have a scope independent of the proper
construction of § 7(c)" of the Natural Gas Act); Evans v. Abney, 396 U.S.
435 (1970) (applying independent and adequate state ground rule).
n301. G. HASKINS & H. JOHNSON, supra note 296, at 553, 625 (1981);
see Montgomery v. Hernandez, 25 U.S. (12 Wheat.) 129, 132 (1827); Henderson v.
Tennessee, 51 U.S. (10 How.) 311, 323 (1850); Hale v. Gaines, 63 U.S. (22 How.)
144, 160 (1859); Long v. Converse, 91 U.S. 105, 113-14 (1875); Giles v. Little,
134 U.S. 645, 650 (1890).
n302. The words of the constitution are, 'cases arising under treaties.'
Each treaty stipulates something respecting the citizens of two nations, and
gives them rights. Whenever a right grows out of, or is protected by, a treaty,
it is sanctioned against all the laws and judicial decisions of the states; and
whoever may have this right, it is to be protected.
Owings, 9 U.S. at 348 (emphasis in original).
n303. See Coleman v. Miller, 307 U.S. 433, 437-38 (1939); Smith v.
Indiana, 191 U.S. 138, 148-49 (1903); Lampasas v. Bell, 180 U.S. 276, 283-84
(1901); Ludeling v. Chaffe, 143 U.S. 301, 305 (1892). The Court did not use the
term "standing" in these cases. The appellees in Smith, however, phrased their
argument in that way: "Plaintiff in error has no standing in this court, and
has no right to invoke the power of this court...." Smith, 191 U.S. at 146.
n304. See notes 315-317 infra and accompanying text.
n305. As such, these state mandamus cases relate more to modern notions
of overbreadth than to jus tertii. Compare Broderick v. Oklahoma, 413 U.S. 601
(1973), with Singleton v. Wulff, 428 U.S. 106 (1976). Of course, overbreadth
like jus tertii can be conceptualized in terms of "standing" — again, the
court dismisses the litigant's claim because he or she is the wrong person to
n306. Marbury v. Madison, 5 U.S. (1 Cranch) 87, 111 ("an act of the
legislature, repugnant to the constitution, is void").
n307. In re Wellington, 33 Mass. (16 Pick.) 87 (1834).
n308. Id. at 95-97. The "devices" included the exercise of "great
caution" in approaching the question; an examination of "every possible
aspect"; deliberation as lengthy and patient as necessary to "throw any new
light on the subject"; a commitment not to void a statute on constitutional
grounds unless the matter was "beyond reasonable doubt"; and a presumption that
the circumstances necessary to support the constitutionality of the legislation
in fact exist. Id.
n309. Id. at 96.
n310. Id. at 93.
n311. Id. at 97-105.
n312. Id. at 105. Here the Court uses the metaphor of "standing" to
refer to the relationship between the litigant and the adjudicative process.
n313. Id. at 106 (emphasis added). The court confessed to experiencing
some befuddlement about the intermediate nature of the case, which it
characterized as a "somewhat anomalous proceeding." Id. at 105-06. It
considered the formal constraints imposed by the mandamus petition — that
the petition gave adequate notice "to all parties interested" and that the
jurisdiction of the commissioners was strictly limited by the terms of the
petition, see text accompanying note 208 supra, — and concluded that these
were sufficient to permit the suit. Id.
n314. Id. at 106.
n315. T. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST
UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION (1868). Cooley's
book was called "the most influential treatise ever published on American
constitutional law." E. CORWIN, LIBERTY AGAINST GOVERNMENT 116 (1948). Justice
Brandeis relied on this book in his concurring opinion in Ashwander v.
Tennessee Valley Auth., 297 U.S. 288, 345 (1936).
n316. B. TWISS, LAWYERS AND THE CONSTITUTION 18, 22 (1942). See also
Seagle, Thomas McIntyre Cooley, 4 ENCYCLOPEDIA OF SOCIAL SCIENCE 357 (1930).
n317. T. COOLEY, supra note 315, at * 163 (3d ed. 1874).
n318. See, e.g., Clark v. Kansas City, 176 U.S. 114, 118 (1900) (quoting
opinion Kansas Supreme Court).
n319. The Supreme Court of the United States, however, was not yet
prepared in 1868, nor for some years afterward, to yield itself to the
leadership of Cooley and those who, including an important section of the
American Bar, shared his views. This was because a controlling majority of the
Court felt that the duty immediately before it was to prevent "the federal
equilibrium" from being completely undermined by the Reconstruction program of
the Radical Republicans.
E. CORWIN, supra note 315, at 118. See also Benedict, Preserving
Federalism: Reconstruction and the Waite Court, 1978 SUP. CT. REV. 39.
n320. 105 U.S. 305 (1881). In Stanley, plaintiffs were shareholders in a
national bank whose shares were taxed by New York, as then permitted by federal
statute. They argued that "the statute of New York, under which the shares were
assessed, was void, because it did not permit the shareholder to make deduction
of the amount of his debts from the valuation of his shares...." Id. at
n321. The full passage is as follows:
What is there to render it void as to a shareholder in a national
bank, who owes no debts which he can deduct from the assessed value of his
shares? The denial of this right does not affect him. He pays the same amount
of tax that he would if the law gave him the right of deduction.... What legal
interest has he in a question which only affects others? Why should he invoke
the protection of the act of Congress in a case where he has no rights to
protect? Is a court to sit and decide abstract questions of law in which the
parties before it show no interest, and which, if decided either way, affect no
right of theirs?
Id. at 311.
n322. Id. at 315.
n323. Id. at 312.
n324. Id. at 315-16. Four years later, the Court said that it "has no
jurisdiction to pronounce any statute, either of a state or of the United
States, void, because irreconcilable with the Constitution, except as it is
called upon to adjudge the legal rights of litigants in actual controversies."
Liverpool, N.Y. & Philadelphia Steamship Co. v. Commissioners of
Emigration, 113 U.S. 33, 39 (1885).
n325. 176 U.S. 114 (1900).
n326. Id. at 118.
n327. Id. at 117-18.
n328. The Court observed that: "The discrimination occurs only in a
particular use of the lands, and it would seem obvious that such use must be
shown to make a cause of action — a right infringed and to be
redressed.... Not a law alone but a law and its incidence are necessary to a
justiciable right or injury...." Id. at 118. The use of the source-path-goal
schema in the reasoning in this passage appears first in the argument that
there must be a source ("such use") for the court to entertain the railroad's
quest for its sought after goal (that is, a "cause of [the court's] action").
It appears again in the Court's definition of cause of action. "Right" derives
from the Latin rectus and "redress" from the Latin directus: both mean straight
and thus are further instances of the source-path-goal structure of the notion
of a private cause of action. See Winter, supra note 66.
n329. 179 U.S. 405 (1900).
n330. Members of the Court relied upon the two cases, Tyler and Davis
& Farnum Mfg. Co. v. City of Los Angeles, 189 U.S. 207 (1903), in their
later opinions developing the underpinnings of modern standing. See Fairchild
v. Hughes, 258 U.S. 126, 130 (1922) (Brandeis, J., citing Tyler); Ashwander v.
Tennessee Valley Auth., 297 U.S. 288, 347-48 (1936) (Brandeis, J., concurring
citing Tyler); Ex parte Levitt, 302 U.S. 633, 634 (1937) (per curiam, citing
Tyler); Coleman v. Miller, 307 U.S. 433, 466 (1939) (Frankfurter, J.,
concurring, citing Tyler); Barrows v. Jackson, 346 U.S. 249, 265 (1953)
(Vinson, C.J., dissenting on standing grounds, citing Tyler); Joint
Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 154 & n.3 (1951)
(Frankfurter, J., concurring, citing Davis); United States v. Richardson, 418
U.S. 166, 193 (1974) (Powell, J., concurring, citing Tyler); Schlesinger v.
Reservists Comm. to Stop the War, 418 U.S. 208, 220 (1974) (Burger, C.J.,
n331. Justice Brown also combined the two concepts in dicta in Red River
Valley Bank v. Craig, 181 U.S. 548, 558 (1901) (citing Lampasas v. Bell, 180
U.S. 276, 283 (1901); Clark v. Kansas City, 176 U.S. 114, 118 (1900);
Supervisors v. Stanley, 105 U.S. 305 (1881)).
n332. Massachusetts Land Registration Act, 1898 Mass. Acts, ch. 562.
n333. Tyler, 179 U.S. at 410.
n335. Every element requisite to the maintenance of our jurisdiction
exists, and ... we cannot decline to exercise it because of any supposed error
on the part of the state court in respect to entertaining the suit.... The
state court ruled that the petition was sufficient to raise the Federal
question; that petitioner was competent to raise it; and that he was entitled
to preventive relief if his contention was well founded.
Id. at 413-14 (Fuller, J., joined by Harlan, Brewer, & Shiras, JJ.,
n336. Tyler v. Judges of the Court of Registration, 175 Mass. 71, 55
N.E. 812 (1900).
n337. See cases cited supra note 167.
n338. Tyler, 179 U.S. at 406.
n340. Id. at 407-08. See notes 292-302 and accompanying text for a
discussion of Owings.
n341. Justice Brown noted that "the court is not empowered to decide
moot questions or abstract propositions, or to declare, for the government of
future cases, principles or rules of law which cannot affect the result as to
the thing in issue in the case before it." Tyler, 179 U.S. at 409 (quoting
California v. San Pablo & Tulare R. R., 149 U.S. 308, 314 (1893)). In
Justice Brown's view, the abstractness of Mr. Tyler's case turned on an
assessment of the contingencies: If the registration statute were later held
unconstitutional "the proceedings against him [Mr. Tyler] would simply go for
naught." Tyler, 179 U.S. at 410. Alternatively, if Mr. Tyler participated in
the registration statute proceedings and "that court shall eventually uphold
his contention with respect to the boundary, he will have no ground for
complaint." Id. Only if Mr. Tyler lost below would the case be proper for the
Court's review. Id.
n343. One might have assumed that the direct injury requirement was
rooted in an a fortiori logic of "standing": If an injured party could not sue
when the alleged illegality did not affect her, then certainly she should not
be able to sue when she had suffered no injury at all.
n344. 189 U.S. 207 (1903). Professor Vining identified Davis as the
first case to contain the term "standing," albeit in a headnote. J. VINING,
supra note 27, at 55.
n345. The Court first noted that equity would not enjoin criminal
proceedings. It then inquired whether the case fell within the exception for
unconstitutional state laws that threaten irreparable harm to property, Davis,
189 U.S. at 217-18, considering Davis's impairment of contract claim.
n346. Id. at 218.
n347. Id. at 219. That the Court assumed that the city had not impaired
the subcontractor's contract at all also explains the unavailability of
equitable relief. "Whether the Gas and Fuel Company in such action could defend
upon the ground that the municipality had forbidden the prosecution of the work
might depend somewhat upon the terms of the contract...." Id. The Court saw
only a contract issue: If the contract contained a force majeure clause, then
there was no contract to be impaired because both parties would have accepted
the risk of such an ordinance. If the contract did not contain such a clause,
then there was still an unimpaired, enforceable contract.
n348. Venner v. Great N. Ry. Co., 153 F. 408, 411 (C.C.S.D. N.Y. 1907);
Poor v. Iowa Cent. Ry. Co., 155 F. 226, 230 (C.C.S.D. Iowa 1907); see also Gage
v. Riverside Trust Co., 156 F. 1002, 1006 (C.C.S.D. Cal. 1906).
n349. 235 U.S. 151 (1914). McCabe is cited in Schlesinger v. Reservists
Committee to Stop the War, 418 U.S. 208, 221-22 (1974), Bailey v. Patterson,
369 U.S. 31, 32-33 (1962) (per curiam), and Barrows v. Jackson, 346 U.S. 249
n350. 239 U.S. 33 (1915). Truax is cited on the issue of standing in Roe
v. Wade, 410 U.S. 113, 124 (1973), Abington School District v. Schempp, 374
U.S. 203, 266 n.30 (1963) (Brennan, J., concurring), Barrows, 346 U.S. at 258,
and Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 154 (1951)
(Frankfurter, J., concurring).
n351. 163 U.S. 537 (1896).
n352. McCabe, 235 U.S. at 161.
n353. Id. (emphasis added).
n354. "The complainant cannot succeed because someone else may be hurt."
Id. at 162.
n355. Id. In Mitchell v. United States, 313 U.S. 80 (1941), the Hughes
Court reversed a ruling of the Interstate Commerce Commission (ICC) on
substantially similar facts. Applying the modern conception of standing, the
Court held that Congressman Mitchell had standing. 313 U.S. at 92-93. On the
merits, the Court held that Mitchell was entitled to an order from the ICC
forbidding discrimination in the future because "'the incident was ...
representative of an alleged practice that was expected to continue.'" Id. at
96 (quoting Mitchell v. Chicago, 229 I.C.C. 703, 704 (1938). The irony is that
McCabe was written by Associate Justice Hughes, and Mitchell was authored by
Chief Justice Hughes.
n356. Id. at 164. The Court later relied on this passage in Schlesinger
v. Reservists Committee to Stop the War, 418 U.S. 208, 221-22 (1974). The
McCabe reasoning is similar to that which precluded Adolph Lyons from enjoining
the chokehold practice. See text accompanying notes 14-18 supra.
n357. Truax v. Raich, 239 U.S. 33, 39 (1915).
n358. Truax, 239 U.S. at 37, 38.
n359. Id. (citing McCabe, 235 U.S. at 162).
n360. Id. at 39.
n362. See Langdell, supra note 280, at 672.
n363. Truax, 239 U.S. at 39-40 ("[T]he act undertakes to operate
directly upon the employment of aliens...." (emphasis added)). Id. at 38.
n364. Tyler v. Judges of the Court of Registration, 179 U.S. 405, 406
(1900) (emphasis added).
n365. See Monaghan, supra note 29, at 1367-68.
n366. 73 U.S. (6 Wall.) 50 (1868).
n367. Id. at 54-62. The Attorney General also argued that there were no
proper party defendants since the case was really against the federal
government and not the named federal officers, and thus not within the specific
grant of jurisdiction under article III. Id. at 53-54. But see Ex parte Young,
209 U.S. 123 (1908) (state attorney general held proper party defendant in suit
brought to enjoin enforcement of state law).
n368. Stanton, 73 U.S. at 63.
n369. The Attorney General of Georgia argued that:
It is untrue that questions of a political nature, according to the
vulgar acceptation of that phrase, are unsuited to judicial cognizance. Of
course no court can, judicially, investigate or determine any question unless
parties, between whom it has cognizance, are regularly before it; unless the
disputable facts, if any, be susceptible of a judicial trial, and unless the
relief sought be judicial in its form and nature....
Id. at 67.
n370. Id. at 76.
n371. 91 U.S. 667 (1876).
n372. Id. at 675-76.
n373. Id. at 671.
n374. The first question which naturally presents itself is, whether the
State of Florida has such an interest in the subject-matter of the suit, and in
the controversy respecting the same, as to give it a standing in court. It is
suggested that the trustees of the internal-improvement fund are the only
parties legally interested, and that they have no right to bring an original
bill in this court. To this it may be answered, in the first place, that the
State has a direct interest in the subject-matter (the railroad in question) by
reason of holding (as it does) the four millions of bonds which are a statutory
lien upon the road. In the next place, the interest of the State in the
internal-improvement fund is sufficiently direct to give it a standing in
court, whenever the interests of that fund are brought before a court for
Id. at 675-76.
n375. Anderson, like Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1
(1831), involved a question of "standing" in the context of the Court's
original jurisdiction under article III. The "real-party-in-interest issue" was
a problem familiar to the lower courts in the diversity context, but not one
that invoked the "standing" label. In Anderson, the Court relied on cases in
which the circuit court exercised jurisdiction where there was diversity as
between the real parties, but not when one of the nominal parties' citizenship
was considered. 91 U.S. at 676-77 (citing Coal Co. v. Blatchford, 78 U.S. (11
Wall.) 172 (1870)). The term "standing" does not appear in this discussion of
n376. Id. at 675.
n377. Union Pac. R.R. v. Hall, 91 U.S. 343 (1876).
n378. 262 U.S. 447, 482 (1923).
n379. Id. at 481-83. The Court noted several cases brought by states in
which it had declined jurisdiction. It also listed others, such as Anderson, in
which it had maintained jurisdiction, because they concerned proprietary
rights. Without elaboration, it observed simply that "[t]he foregoing [cases],
for present purposes, sufficiently indicate the jurisdictional line of
demarcation." Id. at 482. It then turned to the question of Massachusetts'
claim: "What, then, is the nature of the right of the State here asserted . .
In the last analysis, the complaint of the plaintiff State is brought to
the naked contention that Congress has usurped the reserved powers of the
several States.... [I]t is plain that that question, as it is thus presented,
is political and not judicial in character, and therefore is not a matter which
admits of the exercise of the judicial power.
Id. at 483.
n380. In re Debs, 15 U.S. 564 (1895). See also Sanitary District v.
United States, 266 U.S. 405, 425-26 (1925) (United States "has a standing in
this suit ... to remove obstruction to interstate and foreign commerce, the
main ground") (Holmes, J.). Id. at 425.
n381. See, e.g., Oklahoma v. Atchison, Topeka & Santa Fe R.R., 220
U.S. 277, 287-89 (1911) (opinion for the Court per Harlan, J.); Georgia v.
Tennessee Copper Co., 206 U.S. 230, 239-40 (1907) (Harlan, J., concurring);
Louisiana v. Texas, 176 U.S. 1, 24-25 (1900) (Harlan, J., concurring). On the
other hand, Justice Harlan had dissented in Tyler on the ground that the third
party claim had been properly raised and considered in the state courts. See
notes 335-336 supra and accompanying text.
n382. See Tennessee Copper, 206 U.S. at 237 (opinion for the Court per
Holmes, J.) (emphasis deleted). See also Missouri v. Illinois, 180 U.S. 208,
241 (1901) (opinion for the Court per Shiras, J.).
n383. 262 U.S. 553, 591 (1923). In this case, Justice Holmes dissented
on the merits. Id. at 600-03. Justice McReynolds dissented on the ground that
the case was not justiciable because it was not ripe, id. at 603-04, and
because the defense of "interstate commerce is not committed to any state as
parens patriae." Id. at 604. Justice Brandeis was alone among the dissenters in
arguing that the cases did not present a "case or controversy." Id. at 610.
n384. 324 U.S. 439, 443 (1945). This battle is chronicled in P. BATOR,
P. MISHKIN, D. SHAPIRO & H. WECHSLER, supra note 21, at 270-75, which
attempts to account for the issue without reference to the public rights model:
"[C]onsider ... whether the function of the original jurisdiction as a
substitute for diplomacy and war justifies a more liberal standard of
justiciability in actions between states than in actions by a state against
individuals." Id. at 271. But see Ohio v. Wyandotte Chemicals Corp., 401 U.S.
493 (1971), discussed infra note 385.
n385. In Wyandotte Chemicals, the Court affirmed its jurisdiction but
held that the case could not appropriately be handled as an original matter in
the Supreme Court. Previously, Justice Harlan had interpreted article III not
to bar public rights litigation brought by private attorneys general. Instead,
he opposed such suits on policy grounds. See Flast v. Cohen, 392 U.S. 83,
121-23 (1968) (Harlan, J., dissenting).
n386. 426 U.S. 660 (1976).
n387. Id. at 666.
n388. 262 U.S. 591, 610 (1923) (Brandeis, J., dissenting). Although
Justice Brandeis used the syllogism of the forms in his 1926 opinion for the
Court in Tutun v. United States, 270 U.S. 568, 576-77 (1926), he did not limit,
in that case, the cognizable forms to private rights cases. Rather, the Tutun
opinion stressed that it was only the form and not the subject matter that
controlled. Id. See note 116 supra.
n389. 5 U.S. (1 Cranch) 187 (1803).
n390. THE LOUIS DEMBITZ BRANDEIS PAPERS, Box 18, Folders 2-9 (Library of
Congress microfilm series, Part I: United States Supreme Court, October Terms,
1916-1931, Reel 15, # 0075).
n391. In a handwritten note to Justice Brandeis, his law clerk said:
"Your 'first' is lacking in unity. You express 2 distinct objections: (1) moot
case — no real issue; no threat of legal wrong; (2) 'political' question
— not fit for any court to consider." THE LOUIS DEMBITZ BRANDEIS PAPERS,
Box 18, Folders 2-9 (Library of Congress microfilm series, Part I: United
States Supreme Court, October Terms 1916-1931, Reel 15, # 0075).
n392. THE FELIX FRANKFURTER PAPERS, Box 114, folder 10 at 8 (Library of
Congress photocopy of typescript of Box 114, Folders 7 and 8; holograph notes
of FF conversations with LDB, Chatham, Mass., 1922-26); THE LOUIS DEMBITZ
BRANDEIS PAPERS (Library of Congress microfilm series, Part II: United States
Supreme Court, October Terms 1932-1938, Reel 33, # 0450).
n393. 297 U.S. 288 (1936).
n394. 59 U.S. (18 How.) 331 (1856).
n395. Id. at 341 (emphasis added).
n397. 157 U.S. 429 (1895). The Court noted that equity jurisdiction in
shareholder cases "has been frequently sustained." Id. at 553.
n398. 255 U.S. 180 (1921). The Court held that: "The general allegations
as to the interest of the shareholder, and his right to have an injunction to
prevent the purchase of the alleged unconstitutional securities by
misapplication of the funds of the corporation, give jurisdiction under the
principles of Pollock v. Farmers' Loan & Trust Company and Brushaber v.
Union Pacific Railroad Company." Id. at 201-02. Smith was an important
"well-pleaded complaint rule" case on the scope of federal question
jurisdiction. But the references to Pollock, to Brushaber, 240 U.S. 1 (1916),
to the interests of the stockholder, and to his "right" to an injunction also
established the availability of federal equity jurisdiction.
n399. 297 U.S. 288, 319-20 (1936) ("The right of stockholders to seek
equitable relief has been recognized....") (citing Pollock, Brushaber, and
In Brushaber v. Union Pac. R.R., 240 U.S. 1 (1916), the Court explained
its use of the shareholder equity version of the constituent model in language
that echoed the prototype effect of the private rights model in Blackstone's
description of the prerogative writs. Blackstone had characterized those writs
as having "a peculiar and eccentrical nature." 3 W. BLACKSTONE, COMMENTARIES
*115-16. In Brushaber, the Court noted familiar doctrines of equity and "the
peculiar relation of the corporation to the stockholders." Brushaber, 240 U.S.
The Court also cited the "absence of all means of redress" that is, the
absence of an adequate remedy at law, and the possibility of a "multiplicity of
suits" as reasons to allow shareholders equitable relief. Id. at 10. Both
factors are classic bases for the exercise of equity jurisdiction. See 1 J.
POMEROY & S. SYMONDS, EQUITY JURISPRUDENCE §§ 216-222, 243-275
(5th ed. 1941).
n400. 101 U.S. 601 (1880).
n401. Id. at 609.
n403. 175 U.S. 291, 295 (1899). In Bradfield, the plaintiff sought to
enjoin, as a violation of the establishment clause, federal payments pursuant
to a contract with a District of Columbia hospital run by Catholic nuns.
n404. 204 U.S. 24, 31 (1907). In Wilson, the plaintiff sought to enjoin
as unconstitutional payments for the completion of the Panama Canal.
n405. 202 U.S. 429, 438 (1906). In Millard, the plaintiff challenged
District of Columbia expenditures for private railroad improvements.
n406. 253 U.S. 221, 227 (1920). In Hawke, the plaintiff sought to enjoin
the printing of federal ballots for the referendum on the ratification of the
eighteenth amendment. The Court later relied on Hawke to reject the argument
that citizen/taxpayer suits are forbidden by article III. See Coleman v.
Miller, 307 U.S. 433, 439 (1939).
n407. 258 U.S. 130, 137 (1922). In Leser, plaintiffs who were Maryland
voters sought to strike the names of certain women from the list of qualified
voters, challenging the nineteeth amendment. See Coleman, 307 U.S. at 439, for
the Court's subsequent reliance on Leser to reject the argument that
citizen/taxpayer suits are forbidden by article III.
n408. Brief for the United States at 7, Bradfield v. Roberts, 175 U.S.
291 (1899) (No. 76). The government did cite as objections that the
"complainant sues as citizen and taxpayer, yet in forma pauperis" and that, in
order to enjoin a public law, the plaintiff should be threatened with real,
particularized personal injury that is imminent. Id. at 7-8 (citing Grant v.
Cooke, 7 D.C. (2 MacKay) 165, 203-4 (1871)).
n409. Brief for Appellant at 6, Wilson v. Shaw, 204 U.S. 24 (1907) (No.
n411. Brief for the United States at 2, Wilson v. Shaw, 204 U.S. 24
(1907) (No. 43) (citing 1 BEACH, MODERN EQUITY JURISDICTION §§
642-643; 1 HIGH ON INJUNCTION § 9).
n412. For the courts to interfere and at the instance of a citizen, who
does not disclose the amount of his interest, stay the work of construction by
stopping the payment of money from the Treasury of the United States therefor,
would be an exercise of judicial power which, to say the least, is novel and
Clearly there is no merit in plaintiff's contentions. That, generally
speaking, a citizen may be protected against wrongful acts of the Government
affecting him or his property may be conceded. That his remedy is by injunction
does not follow. A suit for an injunction is an equitable proceeding, and the
interests of the defendant are to be considered as well as those of the
plaintiff. Ordinarily it will not be granted when there is adequate protection
at law. In the case at bar it is clear not only that the plaintiff is not
entitled to an injunction, but also that he presents no ground for any relief.
Wilson, 204 U.S. at 31.
n413. 262 U.S. 553 (1923). See notes 388-392 supra and accompanying
n414. Fairchild v. Hughes, 258 U.S. 126, 129 (1922) (quoting In re
Pacific Ry. Comm., 32 F. 241, 255 (C.C.N.D. Cal. 1887) and Muskrat v. United
States, 219 U.S. 346, 357 (1911). Justice Brandeis also used this formulation
in his opinion for the Court in Tutun v. United States, 270 U.S. 568, 576-77
(1926). See note 116 supra and accompanying text.
n415. Fairchild, 258 U.S. at 129-30.
n416. Id. (citing Tyler v. Judges of the Court of Registration, 179 U.S.
405 (1900)). The cite to Tyler was cf. In the final opinion, Justice Brandeis
also cited Giles v. Harris, 189 U.S. 475 (1902).
n417. 258 U.S. 130, 137 (1922).
n418. Brief for Appellees at 5-8, Fairchild v. Hughes, 258 U.S. 126, 129
(1922) (No. 148).
n419. Id. at 7. In contrast, the government's position as originally
expressed in its Motion to Affirm or Dismiss argued that the case presented
"[o]nly a moot question." Motion to Affirm or Dismiss at 3, Fairchild v.
Hughes, 258 U.S. 126 (1922) (No. 148). The "mootness" was tied to the
plaintiff's lack of a demonstrated "interest," but was not further explained.
In this, the government's original position showed the same embryonic form and
lack of theoretical coherence as had Justice Brandeis' very first efforts in
Pennsylvania v. West Virginia. See note 391 supra.
n420. Brief for the United States as Amicus Curiae at 2, Leser v.
Garnett, 258 U.S. 130 (1922) (No. 553).
n421. Leser, 258 U.S. at 136. Leser probably explains the later
confusion over whether federal standing requirements are applicable to state
court actions raising federal questions. See note 453 infra and accompanying
n422. Frothingham v. Mellon, 262 U.S. 447 (1923).
n423. The issue was "[t]he right of a taxpayer to enjoin the execution
of a federal appropriations act." Frothingham, 262 U.S. at 486 (emphasis
n424. 262 U.S. at 486.
n425. Id. at 487 (emphasis added).
n426. Id. (emphasis added). Accord Alabama Power Co. v. Ickes, 302 U.S.
464, 478 (1938) (citing Frothingham for the proposition that "the interest of a
taxpayer in the moneys of the federal treasury furnishes no basis for an appeal
to the preventive powers of a court of equity").
n427. See notes 134-135 supra and accompanying text.
n428. See, e.g., Union Pac. R.R. v. Hall, 91 U.S. 343, 356 (1876).
n429. "Although the remedy by mandamus is at law, its allowance is
controlled by equitable principles ... and it may be refused for reasons
comparable to those which would lead a court of equity, in the exercise of a
sound discretion, to withhold its protection of an undoubted legal right."
United States ex rel. Greathouse v. Dern, 289 U.S. 352, 359-60 (1933) (Stone,
n430. Frothingham conditioned its invocation of the separation of powers
notion as follows: "The general rule is that neither department may invade the
province of the other and neither may control, direct or restrain the action of
the other. We are not now speaking of the ministerial duties of officials."
Frothingham, 262 U.S. at 488 (emphasis added). The Court supported this last
statement with a cite to Gaines v. Thompson, 74 U.S. (7 Wall.) 347 (1869),
which held that neither mandamus nor an injunction would lie to control
discretionary executive action. The Gaines Court in turn relied on Marbury v.
Madison, 5 U.S. (1 Cranch) 87, 105 (1803), and Mississippi v. Johnson, 71 U.S.
(4 Wall.) 475 (1866). Although the Court was thus adverting to questions of
justiciability (in the political question sense, see Marbury, 5 U.S. 105,
107-08), the questions did not concern the plaintiff's ability to invoke the
judicial power in the sense of "standing":
[H]owever the courts may, in ascertaining the rights of parties in
suits properly before them, pass upon the legality of their acts, after the
matter has once passed beyond their control, there exists no power in the
courts, by any of its processes, to act upon the officer so as to interfere
with the exercise of that judgment while ... the law reposes this discretion in
him for that occasion, and not in the courts. The doctrine, therefore, is as
applicable to the writ of injunction as it is to the writ of
Gaines, 74 U.S. at 352.
n431. "Even where by the substantive law stockholders have a standing to
challenge the validity of legislation under which management ... is acting,
courts should, in the exercise of their discretion, refuse an injunction unless
the alleged invalidity is clear." Ashwander v. Tennessee Valley Auth., 297 U.S.
288, 354 (1936) (Brandeis, J., concurring). In closing, Justice Brandeis also
invoked the prerogative writ parallel:
"Where the matter is not beyond peradventure clear we have invariably
refused the writ [of mandamus], even though the question was one of law as to
the extent of the statutory power of an administrative officer or body." A
fortiori this rule should have been applied here where the power challenged is
that of Congress under the Constitution.
Id. at 356 (quoting United States ex rel. Chicago G.W.R. v. ICC, 294
U.S. 50, 63 (1935)) (bracketed material added by Justice Brandeis).
n432. Frothingham, 262 U.S. at 487.
n433. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 819
n434. Frothingham, 262 U.S. at 488-89.
n435. The first application of the term "standing" in the context of
taxpayer suits came in the lower court decisions following Frothingham. Wheless
v. Mellon, 10 F.2d 893 (D.C. Cir. 1926); Elliott v. White, 23 F.2d 997 (D.C.
Cir. 1928); O'Brien v. Carney, 6 F. Supp. 761 (D. Mass. 1934). The cases
include no discussion of the terminology; they are little more than quotations
of Frothingham with the characterization of "standing" attached.
n436. General Inv. Co. v. New York Cent. R.R., 271 U.S. 228, 230-31
(1926) (citations omitted).
n437. Pennsylvania v. West Virginia, 262 U.S. 553, 610 (1923). See notes
383 & 388 supra and accompanying text.
n438. THE LOUIS DEMBITZ BRANDEIS PAPERS, Box 96, Folders 1-7 (Library of
Congress microfilm series, Part II: United States Supreme Court, October Terms,
1932-1938, Reel 16, # 0447). The quoted passage comes from a three page
memorandum that appears to be the second draft. The original two page draft
contains a similar passage in which the second and third sentences are
reversed. In the original, the third sentence read: "They are no more entitled
to a judicial remedy to restrain illegal acts of the corporation which do not
imperil their property, than is any stranger." Id.
n439. Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347-48 (1936)
(Brandeis, J., concurring). In joining this concurrence, Justice Cardozo noted
prophetically that: "It will be a treasure house of instruction for many a
day." THE LOUIS DEMBITZ BRANDEIS PAPERS, Box 96, Folders 1-7 (Library of
Congress microfilm series, Part II: United States Supreme Court, October Terms,
1932-1938, Reel 16, # 0447).
n440. Ashwander, 297 U.S. at 349-53. Before joining the part of the
opinion that attempted to invalidate the shareholder derivative version of the
constituent model, Justice Cardozo argued that Justice Brandeis had gone too
far in characterizing the prior shareholder derivative suits as unsupported,
and suggested that Ashwander was distinguishable on its facts from Pollock.
Letter of January 29, 1936, from Benjamin N. Cardozo to Louis D. Brandeis, THE
LOUIS DEMBITZ BRANDEIS PAPERS, Box 96, Folders 1-7 (Library of Congress
microfilm series, Part II: United States Supreme Court, October Terms,
1932-1938, Reel 16, # 0447). Brandeis nevertheless concluded his discussion
with the observation that: "If, or in so far as, any of the cases discussed may
be deemed authority for sustaining this bill, they should now be disapproved."
297 U.S. at 352.
n441. Ex parte Levitt, 302 U.S. 633, 634 (1937).
n443. 307 U.S. 433, 460 (1939) (concurring opinion joined by Justices
Roberts, Black, and Douglas).
n444. A companion case from Kentucky was also before the Court. Chandler
v. Wise, 307 U.S. 474 (1939) (dismissed as moot).
n445. Coleman, 307 U.S. at 438.
n446. 9 U.S. (5 Cranch) 344 (1809). See notes 291-301 supra and
n447. Coleman, 307 U.S. at 438. The Court's opinion in Coleman clearly
considered "standing" from the perspective of Owings and its progeny.
n448. 307 U.S. at 438-41.
n449. Id. at 445.
n451. Id. at 454.
n452. Brief for the United States Amicus Curiae at 34, Coleman v.
Miller, 307 U.S. 433 (1938) (Nos. 7, 14).
n453. Id. at 34-35. Subsequently, in Doremus v. Board of Educ., 342 U.S.
429 (1952), Justice Jackson wrote for the Court that it would "not undertake to
say that a state court may not render an opinion on a federal constitutional
question even under such circumstances that it can be regarded only as
advisory. But ... our own jurisdiction is cast in terms of 'case or
controversy.'" Id. at 434. Paul Freund suggested, in response, that standing to
raise a federal question in state court should be governed by federal law.
Freund, Discussion in SUPREME COURT AND SUPREME LAW 31, 35 (E. Cahn ed. 1954).
Freund's position makes sense if standing is a threshold question concerning
the judicial process delineated by article III. See P. BATOR, P. MISHKIN, D.
SHAPIRO & H. WECHSLER, supra note 21, at 181. But neither Freund's nor
Justice Jackson's later positions square with the argument, based on Leser v.
Garnett, that they presented in 1938 in Coleman.
n454. Brief for the United States Amicus Curiae at 35, Coleman (Nos. 7,
n457. Id. at 44. The brief acknowledged standing in the Kentucky case
because the state officers were seeking to support state action that had been
declared unconstitutional. Id.
n458. Memorandum Brief on Jurisdiction at 1, Coleman v. Miller, 307 U.S.
433 (1938) (No. 796).
n459. Id. at 2-3.
n460. Coleman, 307 U.S. at 460-61.
n461. Id. at 464.
n462. Id. at 469 (quoting Nixon v. Herndon, 273 U.S. 536, 540 (1927)
(Holmes, J.), and Ashby v. White, 2 Ld.Raym. 938 (1703)). Herndon and Ashby
involved suits challenging denial of citizens' ordinary rights to vote, rather
than suits involving parliamentary or legislative practices.
n463. 341 U.S. 123, 150 (1951) (Frankfurter, J., concurring). The
plurality opinion by Justice Burton, joined only by Justice Douglas, dealt with
standing in the classic terms of substantive rights. It found standing "clear"
because "[t]he touchstone to justiciability is injury to a legally protected
right" and the organizational right to be free of defamation "is such a right."
Id. at 140-41.
n464. Id. at 149-57.
n465. 342 U.S. 429 (1952).
n466. Even so, the Court related its "case or controversy" concept of
standing to the ban on advisory opinions. Doremus, 342 U.S. at 434. In this,
Doremus is similar to the Solicitor General's embryonic argument in Fairchild.
See text accompanying notes 417-419 supra.
n467. 369 U.S. 186 (1962).
n468. 392 U.S. 83 (1968).
n469. Judiciary Act of March 3, 1875, §§ 1-2, 18 Stat. 470-73
(codified as amended at 28 U.S.C. § 1331 (1982)).
n470. P. BATOR, P. MISHKIN, D. SHAPIRO & H. WECHSLER, supra note 21,
n471. Id.; F. FRANKFURTER & J. LANDIS, THE BUSINESS OF THE SUPREME
COURT 60-61 (1928).
n472. F. FRANKFURTER & J. LANDIS, supra note 471, at 60 (from 23,905
in 1873 to 54,194 in 1890).
n473. During this fifty-year period, Congress successively increased the
jurisdictional amount, expanded and changed the role of the circuit courts, and
decreased the Court's obligatory appeal jurisdiction (creating the larger
discretionary jurisdiction by writ of certiorari). P. BATOR, P. MISHKIN, D.
SHAPIRO & H. WECHSLER, supra note 21, at 40-41; F. FRANKFURTER & J.
LANDIS, supra note 471, at 60-61.
n474. See, e.g., Louisville & Nashville R. R. v. Mottley, 211 U.S.
149 (1908); Metcalf v. Watertown, 128 U.S. 586 (1888).
n475. Compare Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875),
with Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816).
n476. It was during this period that John Pomeroy, Christopher Langdell,
and Wesley Hohfeld were developing the field of equity and its relationship to
"law." Pomeroy wrote his treatise on equity jurisprudence in 1881; his son
produced revised editions in 1892, 1905, and 1918. J. POMEROY & S. SYMONS,
EQUITY JURISPRUDENCE ix (5th ed. 1941). Langdell wrote a series of ten articles
in the Harvard Law Review between 1887 and 1900, which first appeared under the
misnomer A Brief Survey of Equity Jurisdiction, 1 HARV. L. REV. 55 (1887); 1
HARV. L. REV. 111 (1887); 1 HARV. L. REV. 355 (1888); 2 HARV. L. REV. 241
(1889); 3 HARV. L. REV. 237 (1890); 4 HARV. L. REV. 99 (1890); 5 HARV. L. REV.
101 (1891); 10 HARV. L. REV. 71 (1896); Langdell, Classification of Rights and
Wrongs, 13 HARV. L. REV. 537 (1900); Langdell, Classification of Rights and
Wrongs II, 13 HARV. L. REV. 659 (1900). In 1913, Hohfeld published his lecture
notes on the relationship between equity and law. Hohfeld, The Relations
Between Equity and Law, 11 MICH. L. REV. 537 (1913).
n477. Singer, The Legal Rights Debate in Analytical Jurisprudence from
Bentham to Hohfeld, 1982 WIS. L. REV. 975, 1025.
n478. Id. at 1026 (bracketed material in original).
n479. Id. at 1050.
n480. See, e.g., Interstate Commerce Comm'n v. Diffenbaugh, 222 U.S. 42
(1911); Tennessee Elec. Power Co. v. Tennessee Valley Auth., 306 U.S. 118, 137
n481. See, e.g., Edward Hines Yellow Pine Trustees v. United States, 263
U.S. 143 (1923); Alexander Sprunt & Son, Inc. v. United States, 281 U.S.
n482. See, e.g., Tyler v. Judges of the Court of Registration, 179 U.S.
405 (1900). Justice Sutherland's dissent in The Chicago Junction Case,
Baltimore & O.R.R. v. United States, 264 U.S. 258, 272-74 (1924), expresses
the notion of damnum absque injuria in arguing against competitor standing. See
note 280 supra.
n483. See R. UNGER, KNOWLEDGE AND POLITICS (1975); Tushnet, Following
the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96
HARV. L. REV. 781, 783 (1983).
n484. See J. VINING, supra note 27, at 2.
n485. See, e.g., J. RAWLS, A THEORY OF JUSTICE 26-27 (1971); R. NOZICK,
ANARCHY, STATE, AND UTOPIA 33 (1974); I. KANT, PERPETUAL PEACE (L. W. Beck ed.
n486. "[P]ure procedural justice obtains when there is no independent
criterion for the right result: instead there is a correct or fair procedure
such that the outcome is likewise correct or fair, whatever it is, provided
that the procedure has been properly followed." J. RAWLS, supra note 485, at
n487. See text accompanying notes 84-85 supra.
n488. See, e.g., Lochner v. New York, 198 U.S. 45 (1905).
n489. See, e.g., Wilson v. Shaw, 204 U.S. 24 (1907) (challenging the
construction of the Panama canal); Fairchild v. Hughes, 258 U.S. 126 (1922) and
Leser v. Garnett, 258 U.S. 130 (1922) (challenging the adoption of the
nineteenth amendment); Frothingham v. Mellon, 262 U.S. 447 (1923) (challenging
a federal entitlement program); Coleman v. Miller, 307 U.S. 433 (1939)
(challenging the Child Labor Amendment).
n490. The Brandeis concurrence in Ashwander v. Tennessee Valley Auth.,
297 U.S. 288, 241 (1936) is the quintessential exposition of this view. But
this process was at work earlier in Fairchild and Pennsylvania v. West
Virginia, as we have seen.
n491. THE FELIX FRANKFURTER PAPERS, BOX 114, Folder 10 at 15 (Library of
Congress photocopy of typescript of Box 114, Folders 7 and 8; holograph notes
of FF conversations with LDB, Chatham, Mass., 1922-26); THE LOUIS DEMBITZ
BRANDEIS PAPERS, (Library of Congress microfilm series, Part II: United States
Supreme Court, October Terms, 1932-1938, Reel 33, No. 0450).
Throughout the period of the 1920s and 30s, Justice Brandeis was in
constant touch with Frankfurter concerning the issues before the Court. Justice
Brandeis supplied Frankfurter with ideas and inside information that
Frankfurter recycled as topics for student papers in his seminar entitled
"Jurisdiction and Procedure of Federal Courts" and in his own scholarly
writing, including the series of articles from 1925 through 1938 that ran under
the title "The Business of the Supreme Court." See B. MURPHY, THE
BRANDEIS/FRANKFURTER CONNECTION 76-78, 84-89 (1982) (Several of the Frankfurter
articles that were part of this series are cited and discussed in note 26
supra); See also Urovsky, The Brandeis-Frankfurter Conversations, 1985 SUP. CT.
n492. 392 U.S. 83, 107 (1968) (Douglas, J., dissenting) ("Frothingham,
decided in 1923, was in the heyday of substantive due process.... A contrary
result in Frothingham in that setting might well have accentuated an ominous
trend to judicial supremacy."). See W. O. DOUGLAS, WE THE JUDGES 53 (1956)
("Justice Louis D. Brandeis used to say that what the Court did not do was
often more important than what it did do.").
n493. G. LAKOFF, supra note 64, at 450.
n494. Id. at 113.
n495. On the eve of the New Deal, Justice Brandeis wrote:
"There must be power in the States and the Nation to remould, through
experimentation, our economic practices and institutions to meet changing
social and economic needs.... To stay experimentation in things social and
economic is a grave responsibility. Denial of the right to experiment may be
fraught with serious consequences to the Nation. It is one of the happy
incidents of the federal system that a single courageous State may, if its
citizens choose, serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country. The Court has the power to
prevent an experiment.... But in the exercise of this high power, we must be
ever on our guard, lest we erect our prejudices into legal principles. If we
would guide by the light of reason, we must let our minds be
New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,
dissenting) (footnote omitted). In the omitted footnote, Brandeis cited F.
FRANKFURTER, THE PUBLIC AND ITS GOVERNMENT 49-51 (1930).
Frankfurter's vision of judicial restraint was the same as that of
Frankfurter thought of himself as a member of a select legal fraternity
whose members understood the true gospel. He often wrote of "the experience
that I have had down here [on the Supreme Court], which so decisively confirms
the philosophy in which Mr. Justice Holmes, Judge Learned Hand, Mr. Justice
Brandeis and I were bred, to wit: James B. Thayer's outlook on the reviewing
power of this Court." Thayer's self-restraint, Frankfurter was convinced,
provided the only assumption upon which a liberal and democratic jurisprudence
could be based.
H. N. HIRSCH, THE ENIGMA OF FELIX FRANKFURTER 129 (1981). But see id. at
129-30 ("Frankfurter was committing a giant oversimplification.... Although
both Holmes and Brandeis endorsed Thayer, they did so for different reasons and
to a different extent.... Frankfurter's pre-Court ideology was, in fact, much
closer to Brandeis's than to Holmes's.... Yet ... 'his tenure on the Court was
marked by a self-conscious attempt to make Holmes the model for the proper
n496. This insulating effect is also what makes troublesome the
application of standing doctrine in cases in which the government's action is
threatening to constitutional values.
n497. 277 U.S. 274 (1928). The Court later approved the declaratory
judgment in Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). An opinion by
Justice Frankfurter later restricted Aetna's scope by a narrow construction of
the interplay between the Declaratory Judgment Act and the federal question
jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 669-72
n498. 272 U.S. 525, 528 (1926). See notes 285-286 supra and accompanying
n499. E. SAPIR, The Status of Linguistics as a Science, in CULTURE,
LANGUAGE, AND PERSONALITY 65, 68-69 (D. Mandlebaum ed. 1963).
n500. 307 U.S. 433, 460 (1939) (Frankfurter, J., concurring).
n501. G. LAKOFF & M. JOHNSON, supra note 63, at 157.
n502. 258 U.S. 126 (1922).
n503. 341 U.S. 123, 149 (1951) (Frankfurter, J., concurring).
n504. G. LAKOFF & M. JOHNSON, supra note 63, at 157-58 (emphasis in
n505. Powell, Parchment Matters: A Meditation on the Constitution as
Text, 71 IOWA L. REV. 1427, 1433 (1986). I have previously explored the
parallels between religion and judicial review that account for "not [only] the
'correctness' or legitimating power of the religious metaphor, but also its
curious persistence." Winter, supra note 19, at 694; see generally id. at
n506. Winter, supra note 19, at 699-700.
n507. G. LAKOFF & M. JOHNSON, supra note 63, at 158.
n508. See notes 4-5 supra and accompanying text.
n509. See notes 85-94 supra and accompanying text.
n510. 426 U.S. 26 (1976).
n511. See notes 565-570 infra and accompanying text. In cases such as
Simon, the legal system errs because it fails to perceive the metaphoric
dimensions of a term and instead applies the term in a literalist sense.
n512. The reference here is to the famous dictum by Thomas Reed Powell.
n513. 418 U.S. 208 (1974).
n514. 392 U.S. 83 (1968).
n515. 454 U.S. 464 (1982).
n516. 426 U.S. 26 (1976).
n517. Another disordering consequence of the metaphor's ontological
effect is the pressure to see all issues in individualist terms. In several
recent cases, however, the Court has departed from the substance of the
individualist view in fictitious and distorting ways because it continues to
employ that view's rhetoric. See notes 601-675 infra and accompanying text.
n518. See Warth v. Seldin, 422 U.S. 490, 500 (1975); Flast v. Cohen, 392
U.S. 83, 99 (1968); see also Association of Data Processing Serv. Orgs. v.
Camp, 397 U.S. 150, 153 (1970) ("The 'legal interest' test goes to the merits.
The question of standing is different.").
n519. Of course, we may be concerned about the potential effects on
absent third parties of judgments obtained by public rights litigants. There
are, however, alternative strategies to imposed silence. By delineating the
area of discussion and then allowing others to participate, we can, as a
practical matter, reduce or remove the adverse consequences of ill-considered
action. See In re Wellington, 33 Mass. (16 Pick.) 87, 106 (1834); Union Pac.
R.R. v. Hall, 91 U.S. 343, 355-56 (1876); Tushnet, supra note 14, at 1716-17
(citing Chayes, supra note 90, at 1311-12). In short, issues about these
practical effects reflect instrumentalist concerns, and there are tools
available other than standing law to regulate these problems. See note 713
infra and text accompanying notes 776-780 infra.
n520. We might ask, alternatively, whether I have a privilege not to
enforce my patent and, concomitantly, the ability to privilege Provender to use
it. If I do, then — in Hohfeldian terms — Widget Wonder has no-right.
See Hohfeld, supra note 61, at 32-33.
n521. Under current doctrine, Widget Wonder could only sue me as the
patent holder if I had threatened enforcement or if, for some other reason,
Widget Wonder had "a reasonable apprehension of liability." See, e.g., American
Needle & Novelty Co. v. Schuessler Knitting Mills, 379 F.2d 376, 379 (7th
Cir. 1967). Otherwise, Widget Wonder might face ripeness problems.
n522. See, e.g., FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 477
(1940) (competitor is in the best position, and possibly the only person, to
act as "private attorney general" to enforce in the licensing process the
public interest requirement of the Communications Act); P. BATOR, P. MISHKIN,
D. SHAPIRO & H. WECHSLER, supra note 21, at 158.
n523. 418 U.S. 208 (1974).
n524. No Senator or Representative shall, during the Time for which he
was elected, be appointed to any civil Office under the Authority of the United
States, which shall have been created, or the Emoluments whereof shall have
been encreased during such time; and no Person holding any Office under the
United States, shall be a Member of either House during his Continuance in
U.S. CONST. art. I, § 6, cl. 2.
n525. Reservists Comm. to Stop the War v. Laird, 323 F. Supp. 833, 840
(D.D.C. 1971). Interesting to us, although of no relevance to the Court, is the
fact that the plaintiffs sought, along with other action, "an order in the
nature of mandamus directed to petitioners [the Secretary of Defense and the
three Service Secretaries] requiring them to strike from the rolls of the
Reserves all Members of Congress...." Schlesinger, 418 U.S. at 211.
n526. Schlesinger, 418 U.S. at 224.
n527. Id. at 225.
n528. Reservists Comm. v. Laird, 323 F. Supp. at 841.
n530. United States v. Richardson, 418 U.S. 166, 203 (1974) (Stewart J.,
dissenting); see generally Hohfeld, supra note 61. Justice Stewart uses the
term to denominate the right/duty structure of the plaintiffs' claim, not the
injury, causation, and redressability structure (the underlying
source-path-goal schema) of the private rights model.
Justice Stewart nevertheless concurred in Schlesinger because he
distinguished, for purposes of standing, between affirmative and negative
duties. Schlesinger, 418 U.S. at 228-29. In the case of negative duties, the
Flast v. Cohen, 392 U.S. 83, 102 (1968), "nexus" criteria might, for example,
control. Richardson, 418 U.S. at 205 (Stewart, J., dissenting). See text
accompanying notes 539-541 infra. Justice Powell is correct that this
distinction makes no sense in terms of current doctrine. Richardson, 418 U.S.
at 186-87 (Powell, J., concurring). But Justice Stewart's conceptual reasoning
about standing is otherwise sound, even though he was caught up both by the
ontological effect of the metaphor and the desire to establish some limits.
n531. FED. R. CIV. P. 12(b)(6).
n532. Schlesinger, 418 U.S. at 217.
n533. Id. at 224 n.14 (citation omitted).
n535. Imagine how the Framers might have handled this problem when they
sat in the first Congress. They could have authorized a suit by writ of
mandamus to enforce the incompatibility clause. Or an informer's statute could
have made enforceable a true conflict-of-interest statute at the behest of any
member of the public. But, if a simple informer's bounty of five dollars would
have made the issue "justiciable," what possible article III, process value
would be lost without it?
n536. Flast v. Cohen, 392 U.S. 83, 102 (1968).
n537. Flast, 392 U.S. at 99.
n538. In his concurring opinion in United States v. Richardson, for
example, Justice Powell characterized this shift in position regarding the
relevance of the merits to the standing inquiry as "abrupt." 418 U.S. 166,
180-81 (1974). Yet, in his opinion for the Court in Warth v. Seldin, Justice
Powell made just the same maneuver as that which he criticized in Flast:
"Although standing in no way depends on the merits of the plaintiff's
contention that particular conduct is illegal, ... it often turns on the nature
and source of the claim asserted." 422 U.S. 499, 500 (1975) (citation omitted).
One can see this as well in Association of Data Processing Serv. Orgs. v. Camp,
where the Court first rejected the "legal interest" test because it went to the
merits, and then adopted the "zone-of-interest" test, which is only a more
pragmatic, Realist's version of the same thing. 397 U.S. 150, 153-54 (1970). In
each case the Court is really asking questions about the merits: Whom does this
statute protect? Who has rights and what are they?
n539. Flast, 392 U.S. at 99 (quoting Baker v. Carr, 369 U.S. 186, 204
n540. Flast, 392 U.S. at 102.
n542. Id. at 122 (Harlan, J., dissenting). Accord Richardson, 418 U.S.
at 182 (Powell, J., concurring) ("[I]t is impossible to see how an inquiry
about the existence of 'concrete adverseness' is furthered by the application
of the Flast test."); H. FINK & M. TUSHNET, supra note 14, at 297 ("The
subsequent history [of Flast] illustrates how a rule that is divorced from its
rationale can be readily undermined or discarded.").
n543. In support of this point, the majority invoked the legislative
history of the establishment clause: "[O]ne of the specific evils feared by
those who drafted the Establishment Clause and fought for its adoption was that
the taxing and spending power would be used to favor one religion over another
or to support religion in general." Flast, 392 U.S. at 103.
n544. Id. (quoting J. MADISON, Memorial and Remonstrance Against
Religious Assessments in 2 WRITINGS OF JAMES MADISON 183, 186 (G. Hunt ed.
n545. See id. at 114 (Stewart, J., concurring) ("Because that clause
plainly prohibits taxing and spending in aid of religion, every taxpayer can
claim a personal constitutional right not to be taxed for the support of a
religious institution."). Justice Fortas also recognized that the Court's
ruling spoke only to establishment clause cases and not to taxpayer standing
generally. Id. at 115.
n546. Justice Harlan's position perhaps most informs this point. He
understood the Court's opinion as trying to answer the personal stake in
As I understand it, the Court's position is that it is unnecessary to
decide in what circumstances public actions should be permitted, for it is
possible to identify situations in which taxpayers who contest the
constitutionality of federal expenditures assert 'personal' rights and
interests, identical in principle to those asserted by Hohfeldian plaintiffs.
This position, if supportable, would of course avoid many of the difficulties
of this case....
Id. at 121. Justice Harlan borrowed the term "Hohfeldian" from Jaffe,
supra note 5, and used it to identify "'personal' rights and interests." Flast,
392 U.S. at 119 n.5, 121.
Hohfeld wrote about the right/duty duality of the common law, not the
degree-of-private-interest question that is the concern of modern standing law.
See Hohfeld, supra note 61. In the sense of the traditional public rights
model, however, these public interest plaintiffs were perfectly Hohfeldian:
They asserted public rights that entailed correlative duties on the defendant;
the difference was that these duties ran to the public rather than just to the
Despite his insights, Justice Harlan was subject to the "standing"
metaphor's ontological and reduction-to-prototype effects. He rejected the
Court's use of criteria for taxpayer "standing" that did not establish the
plaintiff's degree of interest in the outcome of the suit. Flast, 392 U.S. at
121-24. Justice Harlan, however, did not believe that article III limits the
judicial power to cases brought only by "Hohfeldian" plaintiffs with actual
injury to personal rights. As we have seen, he cited informers' actions as
examples of "non-Hohfeldian" suits that were nevertheless "cases and
controversies." Id. at 120 (citing Marvin v. Trout, 199 U.S. 212, 225 (1905),
and United States ex rel. Marcus v. Hess, 317 U.S. 537, 546 (1943)). In his
view, the requirement of standing in taxpayer suits was a judge-made limitation
imposed for separation of powers purposes. Id. at 130-33.
n547. 454 U.S. 464 (1982).
n548. Id. at 479-80. The property clause grants Congress the power "to
dispose of and make all needful Rules and Regulations respecting the Territory
or other Property belonging to the United States...." U.S. CONST. art. IV,
§ 3, cl. 2.
n549. To borrow the majority's own metaphor: "This reasoning process
merely disguises ... with a rather thin veil, the inconsistency of the court's
results...." Valley Forge, 454 U.S. at 483.
n550. Id. at 486 (emphasis in original) (footnote omitted). In the
accompanying footnote, the Court specifically rejected any "spiritual stake"
premised on the zone of interest analysis of Association of Data Processing
Serv. Orgs. v. Camp, 397 U.S. 150, 154 (1970). Valley Forge, 454 U.S. at 486
n551. Americans United for Separation of Church and State v. United
States Dept. of HEW, 619 F.2d 252, 261 (3rd Cir. 1980).
n552. Id. at 265.
n553. Valley Forge, 454 U.S. at 483 (emphasis added). But cf. Bell v.
Hood, 327 U.S. 678, 682 (1946) ("the court must assume jurisdiction to decide
whether the allegations state a cause of action."). Bell presented no problems
of standing because the plaintiff in Bell suffered injury consistent with the
traditional private rights model. In Bell, the Court considered whether Bell's
fourth amendment (rather than the state law of trespass) claim was sufficient
to justify federal question jurisdiction. Thus, the question in Bell was one
concerning the scope of a constitutional provision and whether that provision
created rights directly enforceable in a federal court. In that context too,
the question of jurisdiction is in some sense inseparable from the underlying
constitutional claim on the merits. See id. at 680-85; Yazoo County Indus. Dev.
Corp. v. Suthoff, 454 U.S. 1157, 1160-61 (1982) (Rehnquist, J., dissenting from
the denial of certiorari).
n554. Valley Forge, 454 U.S. at 482-83.
n555. "[A]ssertion of a right to a particular kind of Government
conduct, which the Government has violated by acting differently, cannot alone
satisfy the requirements of Art. III without draining those requirements of
meaning." Id. at 483. Once accepted, the notion that the assertion of a right
confers standing would render standing law a "collapsed field" in which the
reconceptualization simply obliterates our prior understanding of the subject.
See Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology
of Judging, 36 J. LEGAL EDUC. 518, 541 (1986). Professor Kennedy cites Shelley
v. Kraemer, 334 U.S. 1 (1948), as creating a collapsed field: "[I]f enforcement
of discriminatory covenants is state action, then the private sphere
'disappears,' since all private arrangements are dependent for their structure
on enforcement of private law ground rules." Kennedy, supra, at 541. Compare,
e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978) (statute authorizing a
warehouseman's lien is not subject to constitutional scrutiny because there is
no state action), with id. at 178 ("private" commercial behavior is only
possible because the state provides "a framework of rules" backed up by the
enforcement power of the state).
n556. Valley Forge, 454 U.S. at 490 (Brennan, J., dissenting).
n557. Id. at 494.
n558. Id. at 484 n.20 (majority opinion); see also id. at 476 n.13
n559. 426 U.S. 26 (1976).
n560. The Simon formulation originated in Linda R. S. v. Richard D., 410
U.S. 614 (1973), in which the Court held that a mother had no standing to sue
the prosecutor to enforce child support payment laws. In that case, however,
Justice Marshall's majority opinion identified the requirements as deriving
from the "unique context of a challenge to a criminal statute" and the "special
status of criminal prosecutions in our system." Id. at 617, 619. The government
defendants in Simon understood Linda R. S. in just that way, and framed their
arguments accordingly. Simon, 426 U.S. at 37. In Warth v. Seldin, 422 U.S. 490
(1975), however, the Court elevated the Linda R. S. criteria to the
constitutional standard for standing. As I explained in Section II, the
recharacterization in Warth of the injury, causation, redressability criteria
is a natural extrapolation from the source-path-goal structure of the private
rights model. See notes 85-95 supra and accompanying text.
n561. 26 U.S.C. § 501(c)(3) (1982) provides that public safety
organizations may be treated as tax exempt.
n562. Simon, 426 U.S. at 41-42.
n563. "Absent such a showing, exercise of its power by a federal court
would be gratuitous and thus inconsistent with the Art. III [case or
controversy] limitation." Id. at 38; see also id. at 39 ("The necessity that
the plaintiff who seeks to invoke judicial power stand to profit in some
personal interest remains an Art. III requirement.").
n564. Id. at 43-44.
n565. Id. at 45-46 (emphasis added).
n566. Id. at 40-41.
n567. See McGlotten v. Connally, 338 F. Supp. 448 (D.D.C. 1972) (quoted
in Eastern Ky. Welfare Rights Org. v. Shultz, 370 F. Supp. 325, 332-33 (D.D.C.
The rationale for allowing the deduction of charitable contributions
historically has been that by doing so, the Government relieves itself of the
burden of meeting public needs which in the absence of charitable activity
would fall on the shoulders of the Government. "The Government is compensated
for its loss of revenue by its relief from financial burdens which would
otherwise have to be met by appropriations from public funds."
McGlotten, 338 F. Supp. at 456 (quoting H.R. REP. No. 1860, 75th Cong.,
3d Sess. 19 (1938)).
n568. H. FINK & M. TUSHNET (1st ed.), supra note 14, at 319.
n569. Simon, 426 U.S. at 56 (Brennan, J., dissenting). Justice Brennan's
identification of "injury" with "opportunity" appears quite awkward. In
contrast, use of the legal interest test would seem quite natural in this
n570. If the insurance analogy seems far-fetched consider the response
of the Senate committee that rejected incorporating the new IRS ruling into the
tax revisions of 1969. "The committee deleted from the bill those provisions
which would have conformed the code to the result reached by the 1969 ruling.
The committee decided to reexamine this matter in connection with pending
legislation on Medicare and Medicaid." S. REP. No. 91-552, 91st Cong., 1st
Sess. 2090 (1969). Congress chose between providing insurance directly or doing
so indirectly by creating tax incentives for hospitals to provide services and
for donors to contribute the necessary funds. The tax incentives operated as a
form of insurance for the indigents, assuring hospitals that they would receive
funds from third parties to cover the expenses of providing medical care to the
indigent. The charitable provisions of the code embodied this nonprototypical
contract. Indigents were the third party beneficiaries.
n571. See Rev. Rul. 56-185, 1956-1 C.B. 202-03, quoted in Simon, 426
U.S. at 30.
n572. Rev. Rul. 69-545, 1969-2 C.B. 117-18, quoted in Simon, 426 U.S. at
n573. Simon, 426 U.S. at 45 n.25 (quoting United States v. SCRAP, 412
U.S. 669, 688 (1973)).
n574. See id. at 39. The case actually went to the Court on
cross-motions for summary judgment. The plaintiffs prevailed on their motion in
the district court, but the court of appeals considered the case on the merits
and reversed. The Supreme Court granted the cross-petitions for certiorari and
ruled on the defendants' petition raising the jurisdictional issues. Id. at
n575. Id. at 42; see id. at 39-46.
n576. As Justice Brennan has twice argued, the Court has sidestepped
entirely the ordinary liberality of pleading (and amendment) under the Federal
Rules of Civil Procedure. See id. at 55 n.6 (Brennan, J., concurring); Warth v.
Seldin, 422 U.S. 490, 527 n.6, 528 (1975) (Brennan, J., dissenting).
n577. If the defendants had tested the causation issue by a motion for
summary judgment, they would have forced the plaintiffs to come forward with
evidence from which a reasonable trier of fact might be able to infer the
requisite causation. See Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 250-251
(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
n578. Only in a footnote did the Court acknowledge the relevance of
these ordinary procedural parameters to the decision in Simon. The footnote
attempted to distinguish United States v. SCRAP, 412 U.S. 669 (1973), where
although ... "the Court was asked to follow [an] attenuated line of
causation," ... the complaint nevertheless "alleged a specific and perceptible
harm" flowing from the agency action.... Such a complaint withstood a motion to
dismiss, although it might not have survived challenge on a motion for summary
judgment.... But in this case the complaint is insufficient even to survive a
motion to dismiss, for it fails to allege an injury that fairly can be traced
to petitioners' challenged action.... Nor did the affidavits before the
District Court at the summary judgment stage supply the missing
Simon, 426 U.S. at 45 n.25 (quoting SCRAP, 412 U.S. at 688, 689 &
n.15). Justice Brennan argued that this "distinction of SCRAP will now 'wash.'"
Id. at 62. But he too would have held that the plaintiffs failed to show
"enough" causation at the summary judgment stage. See id. at 53.
n579. Both before Simon and since, the Court has treated the causation
question as the critical substantive question of a plaintiff's claim of
governmental liability for the actions of its agents. See Rizzo v. Goode, 423
U.S. 362, 370-71 (1976); Monell v. Department of Social Serv., 436 U.S. 658,
690-94 (1978); Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). Monell
"imposes liability on a government that, under color of some official policy,
'causes' an employee to violate another's constitutional rights." Monell, 436
U.S. at 692.
Professor Casebeer has argued that Rizzo, itself a case that mixes
standing and the merits, illustrates doctrinal manipulation in a Realist mode
to sustain unidentified conclusions about the shape of the legal paradigm being
The opinion ... boldly equates the section 1983 language "subjects or
causes to be subjected" with the causation-in-fact standing requirement for an
article III personal injury without arguing the exclusivity of direct causation
for the responsibility of state actors to private citizens — in other
words, on section II A, see II B; on section II B, see II A.
Casebeer, Toward a Critical Jurisprudence — A First Step by Way of
the Public-Private Distinction in Constitutional Law, 37 U. MIAMI L. REV. 379,
401 (1983)(footnote omitted). My point, however, is that this identification of
§ 1983 causation with causation in standing doctrine is not an invention
or abuse perpetrated by Justice Rehnquist; it is a consequence of the
development of standing law from the source-path-goal metaphors of the private
rights model. Substituting the word "is" for "becomes": "[t]he threshold
question of who gets into court [is] the same question as how functionally do
constitutional rights of individuals limit the power of the Sovereign, which
[is] the same question as what is appropriate equitable relief for courts to
grant against administration of government." Id. at 399.
n580. See Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99
n581. Palsgraf, 248 N.Y. at 352, 162 N.E. at 103 (Andrews, J.,
dissenting) (emphasis added). Judge Andrews added: "This is not logic. It is
practical politics." Id.
n582. Suppose the evidence in my bus shelter hypothetical showed both
that the bus driver was negligent and that there were defects in the
manufacture and design of the shelter. To recover from the manufacturer in that
case, my modern Ms. Palsgraf would have to show not just that the defect was a
remote "but for" cause of the collapse, but also that it was the "proximate
cause," that it is the causal source which was closer, its causal path shorter.
n583. See, e.g., Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co.,
(1967) 1 App. Cas. 617 (Wagon Mound II).
n584. See, e.g., Palsgraf, 248 N.Y. at 341-42, 162 N.E. at 99 (majority
n585. See, e.g., In re Kinsman Transit Co., 388 F.2d 821, 824-25 (2d
Cir. 1968) (Kinsman II); In re Kinsman Transit Co., 338 F.2d 708, 719 (2d Cir.
1964) (Kinsman I).
n586. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 42
n587. "The plaintiff sues in her own right for a wrong personal to her,
and not as the vicarious beneficiary of a breach of duty to another." Palsgraf,
248 N.Y. at 342, 162 N.E. at 100.
n588. Palsgraf, 248 N.Y. at 349, 162 N.E. at 102 (Andrews, J.,
n589. See, e.g., Ex parte Young, 209 U.S. 123, 162 (1908) (equity
intervenes only for the protection of property: citing Davis and Dobbins);
Dobbins v. Los Angeles, 195 U.S. 223, 241 (1904) (equity intervenes only for
the protection of property: injuction of of ongoing criminal proceeding); Davis
& Farnum Mfg. Co. v. Los Angeles, 189 U.S. 207, 218 (1903) (equity
intervenes only for the protection of property); In re Debs, 158 U.S. 564,
583-84 (1895) (equity available to protect government property in the
n590. F. FANON, BLACK SKIN, WHITE MASKS 231 (C.L. Markmann trans.
n591. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV.
349, 369 (1974) (discussing standing in the context of the fourth amendment).
My ... question is whether the amendment should be viewed as a
collection of protections of atomistic spheres of interest of individual
citizens or as a regulation of governmental conduct.... Plainly, the Supreme
Court is operating on the atomistic view, [which] is the premise upon which
"standing" to invoke the exclusionary rule has been demanded, the premise upon
which the Court has said that "Fourth Amendment rights are personal rights
which ... may not be vicariously asserted." But ... the fourth amendment speaks
of "[t]he right of the people," ... as in "We the People" or — since ...
the amendment's purpose may be squarely to control the police — as in
"Power to the People"?
Id. at 367 (quoting Alderman v. United States, 394 U.S. 165, 174 (1969)
(citations omitted)). This atomistic focus is not inherent in any particular
constitutional clause or conception, but rather in the adherence to the private
rights model that dominates modern legal thought. The tension between an
atomistic or regulatory focus is a basic dichotomy of social thought and
n592. See, e.g., U.S. CONST. art. IV, § 4 (guaranteeing republican
form of government).
n593. See, e.g., Cooper v. Aaron, 358 U.S. 1, 17-19 (1958); Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Attorney General Meese's comments
that the Court's authority to interpret the Constitution is limited to decision
of the specific dispute before it and is binding only on the litigants caused
an uproar because we see the Court's role as normative and communal, and not
just as about resolving disputes between individuals. Meese Says Rulings by
U.S. High Court Don't Establish Law, N.Y. Times, Oct. 23, 1986, at A1, col. 6;
Washington Talk: Meese and the Storm Over the Court, N.Y. Times, Oct. 27, 1986,
at A20, col. 3. Within the internal logic of the private rights model, there is
something to Meese's point; but the paradigm itself fails to capture the
fullness of the adjudicatory process.
n594. 1 A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA 280 (1835).
n595. For example, it is common in English libel actions that the jury
awards the plaintiff only nominal damages. The real sanction is the normative
judgment of the community, which can only be obtained after a full airing of
the facts before the jury.
n596. The appointment of guardians ad litem, executors for estates of
the deceased, or administrators for estates of the bankrupt exemplify instances
in which the legal system requires representation by those without personal
interest. The legal system also allows a petition for habeas corpus brought by
a "next friend." See, e.g., United States ex rel. Bryant v. Houston, 273 F.
915, 916 (2d Cir. 1921). The "next friend," however, must establish a reason
for the representation, such as mental incapacity of the detained person. E.g.,
id. at 917 ("the application must set forth facts, which will satisfy the court
that the interest of the next friend is appropriate, and that there is good
reason why the detained person does not himself" apply for relief); see also
Gilmore v. Utah, 429 U.S. 1012, 1014 (1976) (mother has "standing" only if
petitioner is incompetent to seek relief on his own); cf. Rees v. Peyton, 384
U.S. 312 (1966) (court bears ultimate responsibility to decide question of the
defendant's mental competence to withdraw petition when counsel seeks to
n597. See, e.g., Hansberry v. Lee, 311 U.S. 32 (1940) (judgment cannot
bind absent third parties when their interests were not adequately
n598. Id. The class action device, with its attendant restrictions,
provides the best example of pragmatic legal rules designed to protect the
interests of absent third parties. See FED. R. CIV. P. 23.
n599. Professor Brilmayer emphasizes the benefits of autonomy and
self-determination thought to accrue from traditional justiciability doctrine.
Brilmayer, supra note 11. For one critique of Brilmayer's thesis, see Tushnet,
supra note 14. In saying that the benefits thought to accrue from standing
doctrine are exaggerated, I do not mean to suggest either that autonomy and
self-determination are unworthy goals or that standing law fails to reflect
them. Rather, standing law works with a notion of autonomy that is so atomistic
and fragmented that justiciability doctrine creates and reinforces conditions
that prevent meaningful self-determination. See, e.g., note 648 infra and text
accompanying notes 662-664 infra.
n600. See, e.g., United States v. United Mine Workers, 330 U.S. 258,
308, 309 (1947) (Frankfurter, J., concurring) (upholding the principle that the
Court has jurisdiction to determine its own jurisdiction simultaneously and
asserting that a man may not be a judge in his own case).
n601. 409 U.S. 205 (1972).
n602. 42 U.S.C. § 3610(a) (1982).
n603. Trafficante v. Metropolitan Life Ins. Co., 322 F. Supp. 352 (N.D.
Cal.), aff'd, 446 F.2d 1158 (9th Cir. 1971).
n604. Trafficante, 409 U.S. at 209-10.
n605. Id. at 211 (quoting Shannon v. United States Dep't of Housing and
Urban Dev., 436 F.2d 809, 818 (3d Cir. 1970)).
n606. Id. at 210-11.
n607. Id. at 211 (quoting 114 CONG. REC. 2706).
n608. See Connecticut v. Teal, 457 U.S. 440 (1972) (individual black may
sue for employment discrimination even when employer hires minorities in
numbers proportionate to labor market).
n609. 455 U.S. 363 (1982).
n610. 42 U.S.C. § 3604(d) (1982).
n611. Havens Realty, 455 U.S. at 373-75.
n612. Id. at 372 (quoting Gladstone, Realtors v. Village of Bellwood,
441 U.S. 91, 103 n.9 (1979)).
n613. Id. at 372.
n615. Id. at 373.
n616. Id. at 374-75.
n617. 428 U.S. 106 (1976).
n618. In Singleton, the Court declined to reach the question of the
constitutionality of this exclusion because the issue had not been pressed or
passed on below. Id. at 119-20. Subsequently, the Court upheld similar federal
legislation excluding nontherapeutic abortion services from coverage under
Medicaid. See Maher v. Roe, 432 U.S. 464 (1977).
n619. Singleton, 428 U.S. at 113. See also id. at 121 (Stevens, J.,
concurring); id. at 122 (Powell, J., Burger, C. J., Stewart and Rehnquist, JJ.,
concurring in part).
n620. Id. at 118. Justice Stevens concurred in the plurality's analysis
only to the extent that the doctors otherwise had standing because their
pecuniary interests were at stake and that they were asserting their own
constitutional rights. Id. at 121-22.
n621. Id. at 114-15 (plurality opinion).
n622. Id. at 115 (quoting Griswold v. Connecticut, 381 U.S. 479, 481
n623. Id. at 117.
n624. Id. at 115.
n625. Id. at 117.
n626. Id. at 128 n.5 (dissenting opinion) (quoting Eisenstadt v. Baird,
405 U.S. 438, 445 (1972)).
n627. Id. at 125-27.
n628. Id. at 117 (plurality opinion) (quoting Roe v. Wade, 410 U.S. 113,
124-25 (1973)); see id. at 126 (Justice Powell's discussion of plurality's
n629. See id. at 126. Justice Powell did not discuss the imperfect
anonymity of pseudonymous litigation that might require the plaintiff to be
available for deposition or to appear in court to testify.
n630. See id. at 128 n.5.
n631. Id. at 129. As he had in his opinion for the Court in Simon,
Justice Powell ignored the obvious relationship between ability to pay and
access to medical services in our economic system. See notes 567-570 supra and
n632. Justice Powell argued that the plurality opinion "appears to have
articulated a new rule of third-party standing" that "will be difficult to
cabin." Singleton, 428 U.S. at 130 n.7.
n633. Id. at 117; see also id. at 115 (discussing the confidential
relationship between a doctor and married patients whom the doctor had advised
on matters of birth control in Griswold v. Connecticut, 381 U.S. 479 (1965)).
n634. Eisenstadt v. Baird, 405 U.S. 438 (1972).
n635. Barrows v. Jackson, 346 U.S. 249 (1953).
n636. My colleague Michael Fischl has emphasized to me the power of this
judicial focus on self-interest to obscure the relevance of the altruistic
motives of the litigants, and its persistence. See Fischl, Self, Others, and
Section 7: Contract Imagery and Protected Activities Under the National Labor
Relations Act (forthcoming) (on file with the Stanford Law Review).
n637. Singleton, 428 U.S. at 117.
n638. Id. at 117-18.
n639. 445 U.S. 388 (1980).
n640. 445 U.S. 326 (1980). The lineup in Geraghty was the same as in
Singleton, except that Justice Stevens joined Justice Blackmun's majority
opinion. The Court was fragmented in Roper. Seven Justices concurred in the
judgment. Justice Blackmun thought Roper was controlled by Geraghty. Id. at
344. Justice Rehnquist concurred on the ground that the two cases were
distinguishable, but that Roper followed from the Court's previous, if "muddled
and inconsistent" cases. Id. at 341; see id. at 340. ("If I were writing on a
clean slate, I might well resolve both these cases against the respondents.").
Justice Stevens' position is discussed in the text accompanying note 671
n641. Geraghty, 445 U.S. at 394. Geraghty challenged the Parole
Commission guidelines. By the time of his appeal, however, he had served his
entire sentence and was released.
n642. Roper, 445 U.S. at 329-31. Roper was a consumer action against a
bank for credit card interest overcharges, brought pursuant to the National
Bank Act, ch. 106, 13 Stat. 99 (1864) (codified as amended in scattered
sections of 12 U.S.C. (1982)).
n643. Roper, 445 U.S. at 332-35.
n644. Geraghty, 445 U.S. at 398, 406 n.11.
n645. Id. at 398.
n646. Id. at 403 (emphasis added).
n647. FED. R. CIV. P. 23.
n648. Geraghty, 445 U.S. at 404; see also Roper 445 U.S. at 331-32
(characterizing "the private interest of the named plaintiffs" as including the
"right ... to employ in appropriate circumstances the procedural device of a
Rule 23 class action to pursue their individual claims.")
It may well be the case that the Court's willingness to stretch standing
doctrine in Geraghty and Roper was the result of two intensely pragmatic
concerns. It had held that the denial of class certification is a
nonappealable, interlocutory order. Yet it understood that mootness, as in
Geraghty, or an offer of judgment, as in Roper, could forever insulate from
appellate review an erroneous denial of class certification by a trial court.
The nonappealability of a denial of class certification and the vulnerability
of the plaintiff to strategic actions by the defendant, moreover, created
opportunities for abuse by defendants in class action cases.
The problem with standing law, however, is that it prevents the Court
from openly engaging in precisely such an instrumentalist calculus. The Court
must instead create new, surrealistic, "personal" rights. And, of course, the
continued treatment of altruistic litigation behavior as impermissible has real
world consequences in other cases. Thus, in Hewitt v. Helms, — U.S. —
, 107 S. Ct. 2672 (1987), the Court reversed a grant of attorneys fees under
the Civil Rights Attorneys' Fees Awards Act of 1976, 42 U.S.C. § 1988
(1983), to a litigant who had not achieved the relief he sought for himself,
even though he obtained substantial benefits for others in establishing state
law due process procedures before confinement to administrative segregation.
The Court reasoned that he was not a "prevailing plaintiff" under the statute.
Id. at 2674. The legislative history is clear, however, that the purpose of the
statute was not just to reward successful, self-interested litigants, but to
encourage "private attorneys general." S. REP. NO. 1011, 94th Cong. 2d Sess., 3
(1976); see also H.R. REP. NO. 1558, 94th Cong. 2d Sess., 6-7 (1976).
n649. "The Court makes no effort to identify any injury to respondent
that may be redressed by, or any benefit to respondent that may accrue from, a
favorable ruling on the certification question." Geraghty, 445 U.S. at 420
(footnote omitted) (Powell, J., dissenting). Justice Powell also rejected the
majority's characterization of the procedural "right" to certification as a
personal one. He argued that Congress had no power under article III to confer
jurisdiction in the absence of standing. Id. at 421.
n650. See Geraghty, 445 U.S. at 399-400 (majority opinion).
n651. Id. at 400 (majority opinion).
n652. Id. at 402.
n653. Id. at 406 n.11.
n654. Id. The discussion of article III in Roper was less intensive and
more murky than that in Geraghty. In Roper, the Court noted that the only
self-interest asserted by the plaintiffs was "their desire to shift to
successful class litigants a portion of those fees and expenses that have been
incurred in this litigation...." Roper, 445 U.S. at 334 n.6. The nineteenth
century Massachusetts court in Wellington rationalized, with a similar
argument, its petitioner's pursuit of mandamus relief absent a personalized
stake different than that of the public at large. In re Wellington, 33 Mass.
(16 Pick.) 67, 105-06 (1834); see notes 307-314 supra and accompanying
n655. Geraghty, 445 U.S. at 406 n.11 (quoting the dissent, id. at
n656. Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973).
n657. Valley Forge Christian College v. Americans for Separation of
Church and State, 454 U.S. 464, 481 (1982). See notes 547-558 supra and
n658. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217
(1974). See notes 523-535 supra and accompanying text.
n659. United States v. Richardson, 418 U.S. 166, 204 (1974) (Stewart,
J., dissenting). In dissent in Richardson, Justice Stewart analogized the
statement and account clause of the Constitution to the Freedom of Information
Act and argued that the constitutional clause gave to each citizen a right to
receive public information regarding appropriations. Accordingly, standing
existed by virtue of the denial of this specific, personal right.
n660. For an excellent exposition of this argument, see Randall Kennedy,
Race Relations Law and the Tradition of Celebration: The Case of Professor
Schmidt, 86 COLUM. L. REV. 1622, 1660-61 (1986).
n661. 461 U.S. 95 (1983). Lyons — like Havens Realty and
Trafficante — was not brought as a class action.
n662. See Brilmayer, supra note 11.
n663. No. 84-515 Civ-King (S.D. Fla. Jan. 15, 1985) (considering
plaintiffs' standing). A favorable decision on the merits of the exclusionary
zoning claim was rendered on June 12, 1987. Burstyn v. Miami Beach, No. 84-515
Civ. (S.D. Fla. 1987).
n664. 422 U.S. 490 (1975). In Burstyn, the court also cited and relied
on Lyons and Valley Forge.
n665. 6 U.S. (2 Cranch) 336 (1805); see notes 201-202 supra and
n666. 11 Ill. 202 (1849); see notes 157-162 supra and accompanying
n667. 91 U.S. 343 (1875); see notes 169-173 supra and accompanying
n668. Hall, 91 U.S. at 354.
n669. In Singleton, Justice Blackmun's plurality opinion noted that one
way to avoid the problem of mootness was the certification of "a class ...
whose fluid membership always included some women with live claims." 428 U.S.
n670. "It is clear that the controversy over the validity of the Parole
Release Guidelines is still a 'live' one between petitioners and at least some
members of the class respondent seeks to represent." Geraghty, 445 U.S. at 396
n671. Roper, 445 U.S. at 342 (Stevens, J., concurring); see also id. at
344 ("[I]n this case, as in Geraghty, the named plaintiffs clearly remained
appropriate representatives of the class at least for that limited purpose."
n672. The Clean Air Act provides that "any person may commence a civil
action on his own behalf ... against any person ... who is alleged to be in
violation of ... an emission standard or limitation under this chapter...." 42
U.S.C. § 7604(a) (1982). The D.C. Circuit held that this statute is a
grant of citizen standing, without any requirement of injury-in-fact.
Metropolitan Wash. Coalition for Clean Air v. District of Columbia, 511 F.2d
809 (D.C. Cir. 1975). The Second Circuit disagreed. Friends of the Earth v.
Carey, 552 F.2d 25 (2d Cir. 1977). Federal Courts casebooks commonly ask
readers, as a challenging question, whether the apparent grant of standing
without reference to injury-in-fact under the Clean Air Act is constitutional.
See, e.g., P. BATOR, P. MISHKIN, D. SHAPIRO & H. WESCHLER, supra note 21,
at 183; D. CURRIE, supra note 21 53-54.
n673. See, e.g., United States v. SCRAP, 412 U.S. 669, 678 (1973).
n674. See, e.g., Scenic Hudson Preservation Conference v. Federal Power
Comm'n, 354 F.2d 608 (2d Cir. 1965) (Scenic Hudson I) (Hays, J.), cert. denied,
384 U.S. 941 (1966); but see Sierra Club v. Morton, 405 U.S. 727 (1972).
Broadcast licensing, as well as environmental protection, is also a
prototype in which the communal interest is salient. See, e.g., Office of
Communication of the United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir.
1966); FCC v. Sanders Bros. Radio Station, 309 U.S. 470 (1940). The commonality
of the air waves and the centrality of the media in American society may
explain the salience of the communal stake in broadcast regulation. Woody Allen
recently presented testimony to the Subcommittee on Technology and the Law of
the Senate Judiciary Committee in support of a bill that would recognize the
moral rights of artists in their work (in response to the recent "colorization"
of classic black and white films). Mr. Allen connected the communal value of
art in culture with a "standingless" public rights model of enforcement,
arguing that the legal system should protect the works of "people who
contribute to the society by doing creative work" and that "this principle can
be argued justly by any citizen"; the legal protection need not be invoked by
"a directly involved artist." Legal Issues That Arise When Color is Added to
Films Originally Produced, Sold, and Distributed in Black and White: Hearing
100-391 Before the Subcomm. on Technology and the Law of the Senate Comm. on
the Judiciary, 100th Cong., 1st Sess. 26 (1987) (statement of Woody Allen),
reprinted in Allen, True Colors, THE N.Y. REV. BOOKS, Aug. 13, 1987, at 38.
n675. Singleton, 428 U.S. at 117-18.
n676. See notes 61-103 supra and accompanying text.
n677. See notes 499-675 supra and accompanying text. Milner Ball's
discussion of the law also uses the methodology of metaphor suggested by the
work of Lakoff and Johnson. See generally, M. BALL, LYING DOWN TOGETHER: LAW,
METAPHOR, AND THEOLOGY (1985).
n678. I draw heavily upon G. LAKOFF & M. JOHNSON, supra note 63,
which persuasively documents the overwhelmingly metaphoric nature of our
language and thought.
n679. Id. at 14-21. Orientational metaphors arise from schemata premised
on basic kinesthetic experience such as up-down. A familiar example of an
orientational metaphor in the legal world is the cry of the losing litigant:
"I'll take it up; I'll take it to the highest court in the land if necessary."
n680. Id. at 25-32. Where I grew up we "stood on line"; most of the rest
of the country "stands in line." The latter is a metaphor based on the
container schema: We conceptualize the line as a container holding the people,
who are "in" it. The former employs the source-path-goal schema and an object
metaphor: We conceptualize the line of people in terms of the path beneath them
and the goal in front of them; they stand on the surface of the object beneath
them. I suspect that it is not accidental that the source-path-goal schema
which delineates purpose is the one used by New Yorkers.
n681. Id. at 61-68.
n682. Id. at 56-60.
n683. The expression, the tide comes in and goes out, also depends upon
a metaphor that conceptualizes the dry land in terms of a container schema. It
provides a good illustration of the way in which different but coherent
metaphors are combined to achieve meaning.
n684. G. LAKOFF & M. JOHNSON, supra note 63, at 61 (italics in
n685. Id. at 49. Lakoff and Johnson also discuss a nonstandard metaphor
— Love is a collaborative work of art — that reveals very different
dynamics about a love relationship. Id. at 139-43.
n686. Id. at 46-48.
n687. Id. at 46-48. Lakoff and Johnson identify seven other metaphors
Ideas are products: He has generated a lot of ideas; the idea is a
little rough and needs to be refined.
Ideas are commodities: It's important to package that idea the right
way for it to be saleable.
Ideas are resources: I ran out of ideas; let's pool our thoughts.
Ideas are money: He put in his two cents' worth; he's rich in ideas.
Ideas are cutting instruments: That's an incisive thought; she cut his
theory to shreds.
Ideas are fashions: Ideas may be chic or out-of-date.
Ideas are light: Arguments and discussions may be transparent or
opaque. Id. at 47-48.
There are others that are less prevalent in our culture such as —
Ideas are a physical force: That is a powerful idea; that idea really makes it
work; and Ideas are (knowledge is) water: The ideas pour out of him; he thirsts
These structural metaphors are cultural. For example, Knowledge is water
is a persistent biblical metaphor. See, e.g., Deuteronomy 32:2 (Soncino ed.)
("My teachings shall fall as rain, my speech drip as the dew; as the light rain
upon the tender grass and as the showers on the tall grass"); Proverbs 10:11
(Soncino ed.) ("The mouth of the righteous is a fountain of life."); id. 18:4
("The words of a man's mouth are as deep waters; flowing brook, a fountain of
wisdom."). Of course, the ancient Israelites lived in an exceedingly arid
climate. Thus, one can see how their use of this metaphor was conducive to a
cultural commitment to education.
n688. [T]ruth is relative to understanding, which means there is no
absolute standpoint from which to obtain absolute objective truths about the
world. This does not mean that there are no truths; it means only that truth is
relative to our conceptual system, which is grounded in, and constantly tested
by, our experiences and those of other members of our culture....
G. LAKOFF & M. JOHNSON, supra note 63, at 193. For a further
discussion on this and on the related issues of knowledge and objectivity, see
G. LAKOFF, supra note 64 at 294-303.
n689. See notes 44-54 supra and accompanying text.
n690. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208
n691. See notes 524-535 supra and accompanying text.
n692. 418 U.S. at 224 & n.14.
n693. United States v. Richardson, 418 U.S. 166 (1974).
n694. Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74 (1982).
n695. 42 U.S.C. § 3604 (1982).
n696. 5 U.S.C. § 552 (1982).
n697. See, e.g., 5 U.S.C. § 552(a)(6)(c) (1982) ("[a]ny" person
making a request to any agency"); 42 U.S.C. § 3604(d) (making it unlawful
"[t]o represent to any person").
The expression of the statutory prescription in individualistic terms is
clear in cases like Cannon v. Univ. of Chi., 441 U.S. 677 (1979), where the
Court focused on the statutory language in determining whether to imply a
private cause of action from an otherwise regulatory statute. Id. at 689-94. In
Cannon, Justice Stevens's majority opinion observed that this Court has never
refused to imply a cause of action where the language of the statute explicitly
conferred a right on a class of persons that included the plaintiff in the
case.... Put somewhat differently, because the right to be free of
discrimination is a "personal" one, ... a statute conferring such a right will
almost have to be phrased in terms of the persons benefitted.
Conversely, the Court has been especially reluctant to imply causes of
actions under statutes that create duties on the part of persons for the
benefit of the public at large.
Id. at 691 n.13.
n698. The statutory language in the FOIA is: "Any person making a
request to any agency." 5 U.S.C. 552(a)(6)(C) (1982) (emphasis added).
n699. Many forms of property recognized by the law are really metaphoric
extensions of the physical objects that are prototypical property, which is
probably why lawyers refer to land as real property.
n700. The role of the object metaphor in our conceptualization of
information explains why information was seen as a link between the informer
and the injured party in the representational model of the common law
informers' statute. See text accompanying notes 199-200 supra.
Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976), revealed a
process of reductive, non-metaphoric reasoning about the concept of injury
similar to that in Schlesinger. Denial of medical care was "injury," but denial
of reliable access to care was not. See notes 559-573 supra and accompanying
n701. Frankfurter, Twenty Years of Mr. Justice Holmes' Constitutional
Opinions, 36 HARV. L. REV. 909, 910 (1923).
n702. See Wainwright v. Sykes, 433 U.S. 72 (1977); Stone v. Powell, 428
U.S. 465 (1976) (emphasis on finality of trial); but compare with Cover, The
Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation, 22 WM.
& MARY L. REV. 639 (1981); and Resnick, Tiers, 57 S. CAL. L. REV. 837
(1984) (discussing the benefits of repeated review).
n703. See, e.g., Eisenberg, A Doctor on Trial, N.Y. Times, July 20,
1986, (Magazine) at 26, 28 ("I was accustomed to stress in delivery and
operating rooms, but my trial was a stress marathon."); Geoghegan, Warren Court
Children, NEW REPUBLIC, May 19, 1986, at 17, 19-20 ("To me, the great surprise
was that a trial is ... a physical contest not so unrelated to trials in
primitive times. Through the trial, you are constantly sizing up someone's
stamina .... When lawyers say they are 'on trial,' it is no slip: you are 'on
trial,' like the client.").
n704. See notes 211-213 supra and accompanying text. One of the more
colorful invocations of this metaphor is the Court's expressed desire to make
"the state trial on the merits the 'main event' so to speak, rather than a
'tryout on the road.' ..." Wainwright v. Sykes, 433 U.S. 90 (1977). The Court
draws on the world of boxing in its reference to "the main event" and "tryout
on the road."
n705. See Ball, The Play's the Thing: An Unscientific Reflection on
Courts Under the Rubric of Theater, 28 STAN. L. REV. 81 (1975); M. BALL, supra
note 677, at 23 ("A trial is a theatrical performance in which each side seeks
to persuade the judge or jury by means of a play which passes from fact to
metaphor."); see generally J. HUIZINGA, HOMO LUDENS: A STUDY OF THE PLAY
ELEMENT IN CULTURE 76-88 (1950).
n706. I invoked a variant — Law is a religion — in the text at
note 506 supra. For a discussion of the persistence of the metaphor of religion
in legal scholarship, and its role in the process of judicial review, see
Winter, note 19, supra at 692-99.
n707. The structure of both the courtroom and the proceeding is
designed, like religious ritual, to reinforce basic social values. For example,
the robes and the bench emphasize the authority of the state; the right to be
heard expresses the dignity of the individual. See, e.g., T. ARNOLD, THE
SYMBOLS OF GOVERNMENT 125-32 (1935); C. FRIED, AN ANATOMY OF VALUES: PROBLEMS
OF PERSONAL AND SOCIAL CHOICE 123-35 (1970); Tribe, Trial by Mathematics:
Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329, 1391-92
(1971). Professor Simon mounts a critique of the use of this notion of ritual
to justify the trial process in The Ideology of Advocacy: Procedural Justice
and Professional Ethics, 1978 WISC. L. REV. 29, 94-101.
n708. See J. HUIZINGA, supra note 705.
n709. Simon, supra note 707, argues that the game analogy is more apt
than is the religious ritual analogy because games divide the participants into
winners and losers and religious ritual is generally designed to establish and
maintain community. Id. at 100 (citing C. LEVI-STRAUSS, THE SAVAGE MIND 32
Simon, however, errs on two counts. First, one need only think of
excommunication to conclude that religious ritual may separate as effectively
as it conjoins. The truth is that religion (at least Western religion) is as
much about hierarchy and authority as it is about true community. Consider the
biblical story of Korah. The premise of his challenge to Moses was that "all of
the congregation in its entirety is holy and God is in their midst; why do you
place yourselves above the congregation of God?" Numbers 16:3 (Soncino Press
1941). The response was that the earth swallowed up these mutineers. Id. at
16:31-33. Second, Simon's assumption that only one analogy is "apt" misses the
point that we frequently use more than one metaphor to capture (and structure)
different aspects of a described reality.
n710. G. LAKOFF & M. JOHNSON, supra note 63, at 41-45.
n711. The dia prefix is not the same as dyo, which means two and is the
source of the English prefix "di-."
n712. I choose dialogue because it is so much richer in its connotations
of community, rationality, and cosmology than is the word "conversation."
n713. Of course, it is also true that a conversation can be overwhelmed
and communication destroyed if there are too many participants. This objection
is projected onto the standing context in the form of the fear of a flood of
litigation if the standing requirements are not rigidly enforced. The answer,
however, is simple and belies the seemingly inescapable logic of what is, after
all, only an instance of metaphoric reasoning and not a description of
"reality" — that is, of actual behavior by real world litigants. First,
the real world costs of litigation form a substantial barrier to the profligate
use of adjudication. Second, the asserted "floodgates" problem is merely a
pragmatic one; it can be controlled by a variety of instrumentalist mechanisms
such as attorney fee provisions, Rule 11 sanctions where appropriate, and other
equitable devices. Third, and most important, legal metonymies may be employed
to see that many viewpoints are represented while still keeping the number of
participants down to manageable size.
Many of these devices are already subsumed in Rule 23 governing class
actions and other current practices. The appointment of class representatives,
the definition of subclasses, the participation of intervenors and amici curiae
by leave of court all illustrate the conventionality and manageability of more
pluralistic participation in the adjudicatory process.
n714. See Kaufman, Appellate Advocacy in the Federal Courts, 79 F.R.D.
165, 171 (1977) ("Oral advocacy of this caliber truly makes argument, as Felix
Frankfurter observed, 'a socratic dialogue between the Court and counsel.'");
Board of Students Advisors, Harvard Law School, INTRODUCTION TO ADVOCACY 136-37
(3d. ed. 1985) (describing oral argument as a "conversation").
A wonderful and rich use of the dialogue metaphor appears in the classic
article by Professor Aleinikoff and the late Robert Cover. They use the
metaphor to characterize federal habeas corpus as a "federal-state dialogue" in
which "an open-ended dialogue can ensue. The 'dialectical federalism' that
emerges from this dialogue becomes the driving force for the articulation of
rights." Cover & Aleinikoff, Dialectical Federalism: Habeas Corpus and the
Court, 86 Yale L.J. 1035, 1048 (1977). See also B. ACKERMAN, SOCIAL JUSTICE IN
THE LIBERAL STATE 6 (1980) ("the principle of Rationality conceives ...
dialogue as the foundation of all claims of right"); M. BALL, supra note 677,
at 122 (proposing the metaphor of "law medium — law as connecting rather
than disconnecting, enhancing a flow of dialogue"); Minow, Interpreting Rights:
An Essay for Robert Cover, 96 YALE L.J. 1860, 1873-77, 1886 (1987) (conceiving
"rights as tools of communal dialogue"). Compare, however, the Court's use of
the boxing metaphor in its development of the doctrine of procedural default in
habeas. The boxing metaphor is not only combative, but also dialogue-ending.
Cf. E. SCARRY, THE BODY IN PAIN: THE MAKING AND UNMAKING OF THE WORLD 4 (1985)
(Discussing the practice of torture, Scarry notes: "Prolonged pain does not
simply resist language but actually destroys it, bringing about an immediate
reversion to a state anterior to language, to the sounds and cries a human
being makes before language is learned.") The legal implications of Scarry's
work are discussed in Cover, Violence and the Word, 95 YALE L.J. 1601, 1602-03
n715. See FED. R. CIV. P. 23 advisory committee notes to the 1966
n716. 313 F.2d 284 (5th Cir. 1963).
n717. See FED. R. CIV. P. 23(b)(2) advisory committee notes to the 1966
amendment (discussing Potts).
n718. Potts, 313 F.2d at 288.
n720. Id. at 289 (emphasis in original).
n721. 428 U.S. 106 (1976).
n722. The relational model applies also to the situation in which two
individuals share something that each of them would have separately. For
example, roommates share what would otherwise be their individual privacies.
Problems arise when the state conducts a search targeted against one roommate
and the other later seeks to invoke the fourth amendment to protect herself. In
fourth amendment doctrine, this raised an issue that used to be known as
"standing" until the Court figured out that "standing" and the substantive
right were really one and the same. See Rakas v. Illinois, 439 U.S. 128 (1978);
Rawlings v. Kentucky, 448 U.S. 98 (1980).
The Court, however, invokes the individualist notion that fourth
amendment rights are personal to achieve the same disaggregating result fourth
amendment "standing" previuously achieved. Id. See Amsterdam, Perspectives on
the Fourth Amendment, supra note 591, at 367-69. For extensive discussions of
the problems presented by this individualist model and of the development of a
relational model in the fourth amendment context, see Coombs, Shared Privacy
and the Fourth Amendment, or the Rights of Relationships, 75 CAL. L. REV.
— (1987) (forthcoming).
n723. See notes 393-412 supra and accompanying text.
n724. See MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 5-18 (1980)
(lawyer owes duty of loyalty to corporate entity, and not to management who
engaged his or her services or to any individual stockholder, director, officer
n725. Haven Realty Corp. v. Coleman, 455 U.S. 363 (1982).
n726. City of Los Angeles v. Lyon, 461 U.S. 95 (1983).
n727. In Singleton, the plurality and dissent differed in the assessment
of how close the doctors' self-interested motivation was to the individualist
prototype. In his partial concurrence, Justice Powell argued that the doctors'
concern for the patients' rights was only sufficiently strong if the state had
actually criminalized the procedure, placing the doctor and the patient in
exactly the same self-interested position. Singleton, 428 U.S. at 128-31.
Justice Blackmun's plurality opinion argued that the doctors' self-interested
concern for payment was sufficient to motivate them as reliable representatives
of their patients. Id. at 112-13.
n728. Valley Forge Christian College v. Americans United for Separation
of Church and State, 454 U.S. 464 (1982).
n729. Pennsylvania v. New Jersey, 426 U.S. 660, 666 (1976) (suit by
state as parens pariae.) For a better illustration of the Court's inability to
appreciate a public injustice in the context of standing law, see City of Los
Angeles v. Lyons, 461 U.S. 95 (1983), or Sierra Club v. Morton, 405 U.S. 727
n730. Valley Forge, 454 U.S. at 490 (Brennan, J., dissenting).
n731. See, e.g., Nashville Chatanooga & St. L. Ry. v. Browning, 310
U.S. 362, 369 (1940) (Frankfurter, J.) (in considering the nature of law, one
cannot "disregard the gloss which life has written upon it. Settled ...
practice ... can establish what is ... law.... Deeply embedded traditional ways
of carrying out ... policy, ... are often tougher and truer law than the dead
words of the written text."); Grey, Do We Have an Unwritten Constitution?, 27
STAN. L. REV. 703, 715 n. 48 (1975) (citing Dworkin, The Model of Rules, 35 U.
CHI. L. REV. 14 (1967)) (law "consists of the generally accepted social norms
[to be] applied in the decision of the cases, norms that are — contrary to
the positivist's notion — best seen as 'part of the law,' quite
independent of their promulgation throught defined law making
n732. Winter, supra note 19, at 682-92.
n733. Id. at 701.
n734. J. S. MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 327 (New
n735. Justice White's dissenting opinion in Miranda v. Arizona, 384 U.S.
436, 531 (1966), provides a candid statement of the Court's apparent comfort
with its normative role:
That the Court's holding today is neither compelled nor even strongly
suggested by the language of the Fifth Amendment, is at odds with American and
English legal history, and involves a departure from a long line of precedent
does not prove either that the Court has exceeded its powers or that the Court
is wrong or unwise in its present reinterpretation.... [W]hat [the Court] has
done is to make new law and new public policy in much the same way that it has
in the course of interpreting other great clauses of the Constitution. This is
what the Court historically has done. Indeed, it is what it must do and will
continue to do....
See also Bivens v. Six Unknown Agents, 403 U.S. 388, 407 (1971) (Harlan,
J., concurring) (stating that, in considering the remedies available for a
constitutional violation, "the range of policy considerations we may take into
account is at least as broad as the range of those a legislature would
consider"). J. VINING, supra note 27, at 52-53, notes that this normative focus
is not a recent development.
n736. 476 U.S. 898 (1986).
n737. 461 U.S. 574 (1983).
n738. 28 U.S.C. § 2403(b)(1982). This provision was added to §
2403 in 1976, Pub. L. No. 94-381, § 5, 90 Stat. 1120. It provides in
(b) In any action, suit, or proceeding in a court of the United States
to which the State ... is not a party, wherein the constitutionality of any
statute of that State affecting the public interest is drawn in question, the
court shall certify such fact to the attorney general of the State, and shall
permit the State to intervene for presentation of evidence ... and for argument
on the question of constitutionality. The State shall, subject to the
applicable provisions of law, have all the rights of a
Id. Subsection (a) provides a right of intervention to the federal
government to defend congressional statutes from constitutional attack. That
statute was passed in 1937, Pub. L. No. 352-50, — Stat. 751, and was
originally a companion to the Roosevelt court packing bill, S. 1392. See Cong.
Rec. 1161, 7365 (1937). The statute was in large part a response to the danger
of collusive suits brought to declare New Deal and other progressive
legislation unconstitutional. See Legislation, 51 HARV. L. REV. 148, 148-49
(1937) [hereinafter, Legislation, HARV. L. REV.]; Legislation, Revision of
Procedure in Constitutional Litigation: The Act of 1937, 38 COLUM. L. REV. 153,
153-54 (1938) [hereinafter Legislation, COLUM. L. REV.].
n739. It is perfectly possible that the Court would have found the case
justiciable. The City of New York had agreed to provide relief to the
plaintiffs, but that agreement was contingent on the outcome of the state's
appeal. See Nixon v. Fitgerald, 457 U.S. 731, 743-44 (1982) ($ 142,000
settlement did not moot case because of agreement to make additional payment of
$ 28,000 contingent on outcome in the Supreme Court); but cf. Graddick v.
Newman, 453 U.S. 928 (1981) (questioning state attorney general's "standing" to
seek stay of order addressed to state in case in which Governor was true
n740. Legislation, HARV. L. REV., supra note 738, at 150 (discussing 28
U.S.C. § 2403(a)); see also Legislation, Colum. L. Rev., supra note 738,
at 159-60. These contemporaneous commentators saw the problem not in terms of
"standing," but rather in terms of "abstract questions, or questions which are
or have become moot, or which do not permit of a decree or judgment."
Legislation, HARV. L. REV., supra note 738, at 150; cf. Graddick, 453 U.S. 928
n741. Ruotolo v. Ruotolo, 572 F.2d 336, 338-39 (1st Cir. 1978).
n742. Bob Jones, 461 U.S. at 585 n.9 (citing Wright v. Regan, No.
80-1124 (D.C. Cir. Feb. 18, 1982)).
n743. Allen v. Wright, 468 U.S. 737 (1984).
n744. G. LAKOFF & M. JOHNSON, supra note 63, at 157.
n745. J. S. MILL, supra note 734, at 242.
n746. Michelman, The Supreme Court 1985 Term — Foreward: Traces of
Self-Government, 100 HARV. L. REV. 4, 74 (1986) ("[T]he courts, and especially
the Supreme Court, seem to take on as one of their ascribed functions the
modeling of active self-government that citizens find practically beyond
n747. Id. at 74.
n748. County Commissioners v. People ex. rel. Metz, 11 Ill. 202, 208
n749. The People ex rel. Case v. Collins, 19 Wend. 56, 65 (N.Y. Super.
n750. See, e.g., G. STONE, L. SEIDMAN, C. SUNSTEIN & M. TUSHNET,
CONSTITUTIONAL LAW (1986); Michelman, supra note 746; Sunstein, Interest Groups
in American Public Law, 38 STAN. L. REV. 29 (1985).
n751. United States v. Richardson, 418 U.S. 166, 179 (1974).
n752. "Americans began their history with a very intimate version of
democratic local government.... But there has existed, side by side with —
indeed almost as an aspect of — local democracy, the somewhat
countervailing concept that the charter of a local body is a legally
enforceable compact among the citizens, a concept to which judicial enforcement
of the Constitution has given popular currency.
Jaffe, supra note 5 at 1282.
n753. Michelman, supra note 746, at 36.
n754. Id. at 42.
n755. Id. at 75.
n756. Id. at 57 (quoting Van Alstyne, Interpreting This Constitution:
The Unhelpful Contributions of Special Theories of Judicial Review, 35 U. FLA.
L. REV. 209, 215 (1983)).
n757. Archilochus, Fragment 103, quoted in J. BARTLETT, FAMILIAR
QUOTATIONS 68a (14th ed. 1968).
n758. The Framers handled the jurisdiction of the federal courts in a
similar manner. They left to Congress the question of the existence and uses of
lower federal courts, and they gave it the power of limiting the jurisdiction
of the Supreme Court. U.S. CONST. art. III, § 1 & § 2, cl. 2.
n759. Marbury v. Madison, 5 U.S. (1 Cranch) 87, 102-03, (1803).
n760. Id. at 105, 107.
n761. H. FINK & M. TUSHNET (2d ed.), supra note 14, at 231
(referring to Baker v. Carr, 369 U.S. 186 (1962)).
n762. Standing law as a surrogate might have seemed to work in
Frothingham. But even Frothingham was in the context of a more fluid conceptual
structure that allowed the Court to address directly the separation of powers
issue. Only now, having lost that structure, does the separation of powers seem
wholly dependent on standing law.
n763. See Regan, Community and Justice in Constitutional Theory, 1985
WISC. L. REV. 1073, 1117-22.
n764. City of Los Angeles v. Lyons, 461 U.S. 95 (1983). The allegation
in Lyons concerned the routine use of often fatal chokeholds against traffic
violators. Thus, in Lyons, the relevant aspect of the law enforcement mission
was less immediately related to the protection of human life than in Tennessee
v. Garner, 471 U.S. 1 (1985), where the question was whether the police could
use deadly force to prevent the escape of a fleeing burglary suspect. There,
the Court held that deadly force could only be used against dangerous suspects.
n765. Lyons, 461 U.S. at 116 n.3 (Marshall, J., dissenting).
n766. Singleton v. Wulff, 428 U.S. 106, 113-14 (1976) (plurality
n767. "Because Lyons has a claim for damages ... his personal stake in
the outcome of the controversy adequately assures an adversary presentation of
his challenge to the constitutionality of the policy. Moreover, the resolution
of this challenge will be largely dispositive of his requests for declaratory
and injunctive relief." Lyons, 461 U.S. at 126 (Marshall, J., dissenting)
n768. Of course, standing law is not the only area of current doctrine
that emphasizes, even insists on, selfishness. See also Fischl, supra note
n769. [I]f one person is committing, or threatening to commit, torts
against each of many others, each tort involving the same questions of fact and
law as every other, the many (or a few of them representing themselves and all
the others) may file a bill against the one, and obtain an injunction; for
otherwise each of them would have to bring an action against him. In such cases
the bill is commonly called a bill of peace.
Langdell, A Brief Survey of Equity Jurisdiction, 1 HARV. L. REV., supra
note 476, at 127. Mr. Lyons' suit might conceivably have fared better under
this old equity practice. But see text accompanying notes 764-765 supra.
n770. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937);
accord Havens Realty v. Coleman, 455 U.S. 363, 371 (1982); Nixon v. Fitzgerald,
457 U.S. 731, 744 (1982).
n771. Tyler v. Judges of the Court of Registration, 179 U.S. 405, 406
(1900); see notes 329-342 supra and accompanying text; see also Clark v. Kansas
City, 176 U.S. 114, 118 (1900).
n772. Baker v. Carr, 369 U.S. 186, 214 (1962).
n773. Michelman, supra note 746, at 74.
n774. See, e.g., Coleman v. Miller, 307 U.S. 433, 438 (1938);
Frothingham v. Mellon, 262 U.S. 447 (1923); Fairchild v. Hughes, 258 U.S. 126
(1922); Leser v. Garnett, 258 U.S. 130 (1922).
n775. J. VINING, supra note 27, at 94 (footnote omitted).
n776. See, e.g., Chayes, supra note 90, at 1311-12; Monaghan, supra note
101, at 1392-97; Spann, Expository Justice, 116 U. PA. L. REV. 585 (1983);
Tushnet, supra note 14, at 1716-17.
n777. Wellington, Petitioner, 33 Mass. (16 Pick) 87, 94 (1834).
n778. Union Pac. R.R. v. Hall, 91 U.S. 343, 355-56 (1875); see notes
169-173 supra and accompanying text.
n779. For a discussion of the problems raised by informers' actions, see
note 191 supra.
n780. For a discussion of the relator practice, see notes 136-138 supra
and accompanying text. For a proposal for public actions via the class action
device, see Doernberg, "We the People": John Locke, Collective Constitutional
Rights, and Standing to Challenge Government Action, 73 CAL. L. REV. 42, 110-17
n781. See, e.g., Warth v. Seldin, 422 U.S. 490, 501 (1975); Schlesinger
v. Reservists Comm. to Stop the War, 418 U.S. 208, 224 n.14 (1974).
n782. Id.; see also note 672 supra; Federal Election Comm. v. Nat'l
Political Action Comm., 470 U.S. 480 (1985). For a particularly sensitive and
insightful reading of the social ideals behind NCPAL, see Frug, Argument as
Character, 40 STAN. L. REV. 869, 896-921 (1988).
n783. Wechsler, supra note 100, at 7.
n784. See text accompanying notes 169-173 & 177-183 supra.
n785. W. STEVENS, Adagia, in OPUS POSTHUMOUS 159 (1957).
n786. Cf. Brandon v. Holt, 469 U.S. 464 (1985); Tennessee v. Garner, 471
U.S. 1 (1985).
n787. See generally T. NAGEL, THE POSSIBILITY OF ALTRUISM (1970).
n788. See, e.g., Leviticus 19:18 ("Love thy neighbor as thyself.")
(emphasis added). An excellent exposition of the role of this metaphoric
reasoning from self to others as a basis for moral reasoning is provided by the
philosopher Richard Rorty. "[W]e all care quite a bit about a koala when we see
it writhing about.... Pigs rate much higher than koalas on intelligence tests,
but pigs don't writhe in quite the right humanoid way, and the pig's face is
the wrong shape for the facial expressions which go with ordinary conversation.
So we send pigs to slaughter with equanimity, but form societies for the
protection of koalas." R. RORTY, PHILOSOPHY AND THE MIRROR OF NATURE 190
n789. See Regan, supra note 763, at 1131-32.
n790. ETHICS OF THE FATHERS 1:14. The version quoted is my own
translation from the original Hebrew Mishnah. For English versions, see PIRKEI
ABOTH, THE ETHICS OF THE TALMUD: SAYINGS OF THE FATHERS 1:14 (R. T. Herford ed.
1945); A TREASURY OF JEWISH FOLKLORE 105 (N. Ausubel ed. 1948).