Generalized grievances and judicial discretion

Hastings Law Journal

Volumn 58, Issue 6, 2007, Pages 1331-1370

  Gabel, Mark ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34547939265     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (359)

1. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 60 (3d ed. 2006).
2. Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 HARV. L. REV. 603, 606 (1991).
3. Flast v. Cohen, 392 U.S. 83, 99-100 (1968) ("[T]he question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.");
4. see also CHEMERINSKY, supra note 1, at 60;
5. Lee, supra note 2, at 606.
6. E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-78 (1992);
7. United States v. Richardson, 418 U.S. 166, 176-180 (1974);
8. Doremus v. Bd. of Educ. of Borough of Hawthorne, 342 U.S. 429, 434 (1952);
9. Frothingham v. Mellon, 262 U.S. 447, 488 (1923).
10. See Flast, 392 U.S. at 106.
11. Id.
12. See Ryan Guilds, Comment, A Jurisprudence of Doubt: Generalized Grievances as a Limitation to Federal Court Access, 74 N.C. L. REV. 1863, 1866 (1996) (distilling five different possible "theories" of the doctrine from the pre-1996 case law).
13. Id.
14. 392 U.S. at 106.
15. 422 U.S. 490, 499 (1975).
16. 504 U.S. 555, 573-74 (1992) (plaintiff fails to state justiciable claim when alleging "only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large").
17. 524 U.S. 11, 23-24 (1998).
18. See The Supreme Court, 1998 Term-Leading Cases, 112 HARV. L. REV. 122, 253 (1998)
19. [hereinafter Leading Cases] ("[T]he Court's resolution of the standing question in Akins, whether by necessity or design, fails to elucidate the constitutional boundaries of Congress's ability to confer standing."). Contra CHEMERINSKY, supra note 1, at 91 (asserting that Akins clearly defines generalized grievances as cases in which "plaintiffs sue solely as citizens concerned with having the government follow the law or as taxpayers interested in restraining allegedly illegal government expenditures").
20. See supra notes 7-8 and accompanying text.
21. Injury (sometimes referred to as injury in fact) is one of three requirements for what the Supreme Court calls "Article III" or "constitutional" standing. Professor Chemerinsky offered the following succinct summary of Article III standing: First, the plaintiff must allege that he or she has suffered or imminently will suffer an injury. Second, the plaintiff must allege that the injury is fairly traceable to the defendant's conduct. Third, the plaintiff must allege that a favorable federal court decision is likely to redress the injury. . . . The latter two requirements-termed causation and redressability-often have been treated by the Court as if they were a single test .... CHEMERINSKY, supra note 1, at 63.
22. These three elements are said to derive from a mandate, inferred from Article III, under which federal courts are empowered to hear a claim only if it involves a "case-or-controversy." See, e.g.. Friends of the Earth Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000).
23. See Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371, 1392 (1987) ("[Standing issues] concern the role of law in shaping a self-governing society.... [T]he question 'who may sue?' is really a question of 'what are rights and how may they best be effectuated?'-a question at the heart of law.") (citations omitted).
24. Under a "private rights" or "dispute resolution" model of jurisprudence, "the lawsuit is a vehicle for settling disputes between private parties about private rights.... Litigation is organized as a contest between two individuals or at least two unitary interests, diametrically opposed." Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1282 (1976).
25. According to this model, "[t]he less a lawsuit represents [a contest between] bickering neighbors, the less judicial intervention is justifiable.... The legitimacy of judicial action depends upon the existence of a genuine dispute." Lee, supra note 2, at 626-27.
26. Some commentators consider this view to be the traditional model. See Chayes, supra, at 1282 (arguing that it represents "our received tradition" of jurisprudence).
27. Proponents of a "public values" model of jurisprudence argue that the purpose of adjudication is "to give concrete meaning to our public values, to illustrate how our public and constitutional values play out in the real world." Lee, supra note 2, at 628
28. (citations omitted). Under this view, judges should seek not simply to resolve disputes, but to discover, vindicate and elaborate those values. See id.
29. For an extended theoretical exposition of the principles underlying the public values model, see, for example, Owen M. Fiss, The Supreme Court, 1978 Term, Forward: The Forms of Justice, 93 HARV. L. REV. 1, 2, 17 (1979).
30. See generally STEPHEN BREYER, ACTIVE LIBERTY (2005).
31. For a summary of Justice Breyer's view of jurisprudence, see infra note 161.
32. 258 U.S. 126 (1922).
33. 262 U.S. 447 (1923).
34. 302 U.S. 633 (1937).
35. For the Court's equivocation on the first issue, which I refer to as the "widely-shared" problem, compare Duke Power Co. v. Carolina Environmental. Study Group, Inc., 438 U.S. 59, 80 (1978)
36. (holding that standing should be denied where the "harm asserted amounts only to a generalized grievance shared by a large number of citizens in a substantially equal measure"), with United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 678, 687 (1973)
37. (holding that a group of five law students had standing even though "all persons who utilize the scenic resources of the country, and indeed all who breathe its air" could potentially claim the same injury as the plaintiffs). On the separation of powers issue, compare Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 222 (1974)
38. (arguing that allowing standing to a generalized grievance would "distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing 'government by injunction'"), with Federal Election Commission v. Akins, 524 U.S. 11, 24 (1998) (finding that even if the interest claimed by a plaintiff might be more readily addressed by the political branches, that "does not, by itself, automatically disqualify [it] for Article III purposes").
39. See infra Part III.A.2.
40. See Frothingham, 262 U.S. at 480, 488
41. (holding that a party seeking standing must show "direct injury ... not merely that he suffers in some indefinite way in common with people generally") (emphasis added);
42. James Leonard & Joanne C. Brant, The Half-Open Door: Article III, The Injury-in-Fact Rule, and the Framers' Plan for Federal Courts of Limited Jurisdiction, 54 RUTGERS L. REV. 1, 10 (2001).
43. 258 U.S. 126, 127, 130 (1922). The Nineteenth Amendment provides that "[t]he right ... to vote shall not be ... abridged ... on account of sex." U.S. CONST, amend. XIX, § 1.
44. Fairchild v. Hughes, 258 U.S. 126, 127 (1922).
45. Id. at 129.
46. Id.
47. Id.
48. See U.S. CONST, art. V
49. (prescribing that a constitutional amendment, after being passed by Congress, "shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States"); Fairchild, 258 U.S. at 127.
50. See Fairchild, 258 U.S. at 127.
51. See U.S. CONST, art. V;
52. Fairchild, 258 U.S. at 127.
53. Even if Fairchild had obtained the remedy he sought-preventing the Secretary of State from proclaiming the amendment ratified, id.,-the amendment would arguably have been valid, because the Constitution doesn't require an official proclamation of the ratification. By issuing the injunction, the Court would have raised grave constitutional questions by impliedly asserting its authority to halt the ratification process in a way not explicitly authorized by Article V.
54. Fairchild, 258 U.S. at 129.
55. Id.
56. 302 U.S. 633 (1937).
57. Id.
58. See CHEMERINSKY, supra note 1, at 255 (explaining that President Roosevelt proposed the Court packing plan in March 1937). Levitt was decided in October 1937.302 U.S. at 633.
59. We know that Levitt was a lawyer because the Court referred to him as "a member of the bar of this Court." Levitt, 302 U.S. at 633.
60. See id. The fact that the opinion is per curiam may suggest the justices' awareness of the political sensitivity of the issue. By refusing, on standing grounds, to address the issue, and doing so in a single voice, the Court could mollify potential concerns that it would challenge the President's use of his appointment power.
61. Id. This is not to say that the Court's injury rationale was solely a pretext for avoiding the political and separation of powers issues. But it was likely at least in part such a pretext.
62. Id.
63. See id.
64. In United States v. Richardson, Chief Justice Burger would argue that Levitt was denied standing because, "whatever [his] injury, it was one he shared with 'all members of the public'" 418 U.S. 166, 179-80 (1974). This seems incorrect. Levitt was not denied standing because he had a widely shared injury, but rather because he had no measurable injury at all.
65. See Frothingham v. Mellon, 262 U.S. 447, 487-89 (1923).
66. See id.
67. Id. at 479-80. In a taxpayer standing case, the plaintiff's claim of injury is that his taxes are being used to support or enforce an illegal government action or statute. The plaintiff then attempts to use this claim to support a facial challenge to the allegedly illegal action or statute.
68. Although 1923 was the heyday of a period during which the Court invalidated a number of acts of Congress on substantive due process grounds, most of the overturned statutes involved economic regulation. See CHEMERINSKY, supra note 1, at 606-07.
69. Frothingham, in contrast, challenged the Maternity Act, social legislation designed to reduce infant mortality. Frothingham, 262 U.S. at 479.
70. This distinction may explain why Justice Sutherland's opinion does not bother much with the merits of the plaintiff's due process claim. See id. at 486-89.
71. Frothingham, 262 U.S. at 488.
72. Id. at 487.
73. Id.
74. Id.
75. The Court eventually recognized a limited basis for taxpayer standing under the taxing and spending clause of the Constitution in Flast v. Cohen. 392 U.S. 83, 102-03 (1968).
76. Subsequent cases, however, seem to have limited Flast to its facts-that is, to situations in which the plaintiff is using her status as a taxpayer to challenge government expenditures as violative of the Establishment Clause. CHEMERINSKY, supra note 1, at 94.
77. Frothingham, 262 U.S. at 487.
78. See id. ("[S]uch a result, with its attendant inconveniences, goes far to sustain the conclusion ... that a suit of this character [i.e., a taxpayer suit] cannot be maintained.") (emphasis added).
79. Id. at 488-89.
80. Id. at 489.
81. The idea that these early cases, and to some extent standing doctrine in general, are ultimately concerned with finding "appropriate plaintiffs" and excluding "inappropriate" ones, was first suggested to me by Professor Evan Tsen Lee.
82. Lee Albert proposed a similar theory of the generalized grievances doctrine:
83. Upon finding a litigant to be without any other interest, courts have said that he 'suffers in some indefinite way in common with people generally' or that the cause is one of public concern. To infer from this that the collective character of an interest is relevant to its insufficiency for private standing would be error. A litigant's interest in the lawfulness of particular government action may be shared with others but whether it is or not is immaterial to the ruling that he is without standing.... [TJhese expressions do not provide a reason for the finding of standing; they describe the result. Attribution of the interest to the public is a figure of speech, expressing the conclusion that general law enforcement must be left to public officials or the public in its political capacity.
84. Lee A. Albert, Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 YALE L.J. 425, 488-89 (1974)
85. (citing Frothingham v. Mellon, 262 U.S. 447, 488 (1923)) (emphasis added).
86. Warth v. Seldin, 422 U.S. 490, 498 (1975).
87. Id. (emphasis added).
88. Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 473-74 (1982)
89. (classifying the generalized grievances doctrine as one of "a set of prudential principles that bear on the question of standing"); Warth, 422 U.S. at 499-500 (referring to the doctrine as one of a group of "limitations closely related to Art. III concerns but essentially matters of judicial self-governance").
90. See Valley Forge, 454 U.S. at 475 (finding that generalized grievances are "most appropriately addressed in the representative branches");
91. Warth, 422 U.S. at 500 (stating that a court entertaining a case involving a generalized grievance would be forced "to decide abstract questions of wide public significance even though other governmental institutions may be more competent to [do so]").
92. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74, 576-77 (1992) (stating that "a plaintiff raising only a generally available grievance about government... does not state an Article III case or controversy" and arguing that allowing claims based on "the undifferentiated public interest in ... compliance with the law" violates separation of powers).
93. Commentators disagree about exactly when the generalized grievances doctrine changed from a prudential doctrine to a constitutionally compelled one. Compare Myriam E. Gilles, Representational Standing: U.S. Ex Rel. Stevens and the Future of Public Law Litigation, 89 CAL. L. REV. 315, 323, 327 (2001)
94. (arguing that standing doctrine as a whole was constitutionalized in Warth and in City of Los Angeles v. Lyons, 461 U.S. 95, 111-12 (1983))
95. with Daniel Patrick Condon, Note, The Generalized Grievances Restriction: Prudential Restraint or Constitutional Mandate, 70 GEO. LJ. 1157, 1170-73 (1982)
96. (arguing that the Court constitutionalized the doctrine earlier, in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974)
97. and United States v. Richardson, 418 U.S. 166 (1974)).
98. Given that both Warth and, seven years later, Valley Forge, explicitly state that the doctrine is prudential, see supra notes 62-63, it seems incorrect to argue that the generalized grievances doctrine was constitutionalized before those cases. Lujan marks the first time that the Court explicitly barred a generalized grievance based primarily on Article III standing requirements.
99. See infra Part II.B.
100. Allen v. Wright, 468 U.S. 737, 751 (1984).
101. Bennett v. Spear, 520 U.S. 154, 162 (1997) (citing Warth, 422 U.S. at 501).
102. For example, broadly worded citizen suit provisions can be found in several key environmental laws. See, e.g., 16 U.S.C. § 1540(g) (Endangered Species Act) (providing that "any person may commence a civil suit on his own behalf to enjoin violations and that "the district courts shall have jurisdiction");
103. U.S.C. § 1365 (Clean Water Act) (same). The constitutional/ prudential distinction is thus particularly important to the ability of environmental plaintiffs to gain standing.
104. See CHEMERINSKY, supra note 1, at 95-96.
105. See Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997) ("Congress' decision to grant [standing] ... eliminates any prudential standing limitations.").
106. Id. ("Congress cannot erase Article Ill's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.").
107. This invented example uses explicit language to demonstrate the doctrinal move involved. For an actual, less extreme example, see Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964) ("Our lack of jurisdiction to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.").
108. Lee, supra note 2, at 617.
109. See Susan Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 292-93
110. ("[Constitutionally grounded rules deprive both future courts and Congress of flexibility in defining jurisdictional requirements.... Unquestionably, prudential limits on the Court are preferable because they are more flexible."). This is not to say that the Court cannot overturn established constitutional precedent when it wishes to. See, e.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003) (overruling a prior case because it "was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent.");
111. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854 (1992) ("[I]t is common wisdom that the rule of stare decisis is not an 'inexorable command,' and certainly it is not such in every constitutional case.") (citation omitted).
112. See Casey, 505 U.S. at 854 ("[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. [Listing several such considerations]."). But when the Court overrules previous constitutional precedents, it generally expends significant energy on a lengthy analysis of the propriety of doing so.
113. See, e.g., Lawrence, 539 U.S. at 567-79 (justifying the overruling of Bowers v. Hardwick, 478 U.S. 186 (1986)).
114. See Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997) ("Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.").
115. See id.
116. See infra Part II.A.
117. See Gilles, supra note 64, at 315 n.2, explaining:
118. [T]he landmark constitutional cases of the last century ... were driven by private plaintiffs who sought not only redress for the harms they had personally suffered, but also protection for society at large against those harms. The Court's constitutionalized standing doctrine has effectively neutered the popular force that powered these reformative enterprises.
119. See supra notes 62-63 and accompanying text.
120. See supra notes 62-63 and accompanying text.
121. See supra notes 62-63 and accompanying text.
122. Contra Condon, supra note 64, at 1170-73 (arguing that two 1974 cases constitutionalized the generalized grievances doctrine eighteen years before Lujan).
123. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 574-77 (1992) (citing cases).
124. See id.
125. See id. at 574-76.
126. Fairchild v. Hughes, 258 U.S. 126, 129 (1922).
127. Frothingham v. Mellon, 262 U.S. 447, 487 (1923).
128. See supra text accompanying notes 58-59.
129. 302 U.S. 633 (1937).
130. 418 U.S. 208 (1974).
131. Shlesinger, at 226-27 (contrasting a "generalized grievance" with a "case or controversy");
132. Levitt, 302 U.S. at 633 (holding that a litigant lacks standing unless "he [can] show that he has sustained, or is immediately in danger of sustaining, a direct injury" and that "a general interest common to all members of the public" does not satisfy that requirement).
133. Schlesinger, 418 U.S. at 223.
134. Id.
135. See, e.g., Schlesinger, 418 U.S. at 222, 227;
136. United States v. Richardson, 418 U.S. 166, 179 (1974).
137. This line of reasoning implicitly repudiates Justice Warren's statement in Flast v. Cohen that standing "does not... raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government." 392 U.S. 83, 100 (1968).
138. Richardson, 418 U.S. at 179.
139. Id.
140. Schlesinger, 418 U.S. at 222
141. (quoting Flast, 392 U.S. at 131 (Harlan, J., dissenting)).
142. See supra text accompanying notes 56-57.
143. See Schlesinger, 418 U.S. at 227;
144. Richardson, 418 U.S. at 179.
145. On Frothingham and Levitt, see supra text accompanying notes 58-59 and 87-88.
146. On Richardson, see 418 U.S. at 177, 179-80 (explaining that plaintiff "has not alleged that, as a taxpayer, he is in danger of suffering any particular concrete injury as a result of the operation of this statute").
147. With regard to Schlesinger, see 418 U.S. at 220 (denying citizen standing "because of the necessarily abstract nature of the injury").
148. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881 (1983).
149. Id. at 894.
150. Id.
151. Id. at 894, 896.
152. Id. at 895-96.
153. Id.
154. Cf. id. at 896 ("There is surely no reason to believe that an alleged governmental fault of such general impact would not receive fair consideration in the normal political process.").
155. See Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. PA. L. REV. 613, 647 (1999) (arguing that Justice Scalia's argument is "weak" because, by granting standing in a statute, Congress showed that it ha[d] concluded "that relevant people should have access to the courts in order to ensure that the (democratically enacted) law is enforced").
156. Justice Scalia explicitly acknowledged in his article that his standing theory undermined congressional power, commenting that it was no loss for "important legislative purposes, heralded in the laws of Congress," to be indefensible in the courts. Scalia, supra, note 102 at 897.
157. For other criticisms of the arguments Justice Scalia made in this article, see Sunstein, supra note 109, at 646-47.
158. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-78 (1992).
159. See id.
160. Id. at 573.
161. Id.
162. The plaintiffs in Lujan claimed that the Department of the Interior had violated the Act by issuing an impermissible regulation and then applying the regulation so as to harm endangered species that plaintiffs wished to observe. Lujan, 504 U.S. at 559, 562-64. The citizen suit provision of the Endangered Species Act authorizes "any person to commence a civil suit on his own behalf to (a) "enjoin any person, including the United States ... who is alleged to be in violation of any provision of th[e] Act," or to (b) force the Department of the Interior to fulfill certain of its responsibilities under the statute; and expressly granted district courts jurisdiction to order appropriate remedies. 16 U.S.C. § 1540(g).
163. See supra note 101.
164. See supra note 115.
165. Lujan, 504 U.S. at 577-78.
166. Id.
167. Cf. David A. Logan, Standing to Sue: A Proposed Separation of Powers Analysis, 1984 WIS. L. REV. 37, 58 (1984) Logan proposed essentially the argument as that in the text:
168. [I]f Congress passes a statute declaring that certain behavior is proscribed and then allows 'any person' to sue to enforce that statute, does 'any person' in fact have standing to sue irrespective of whether that person can assert any injury to himself? ... [No, because] article IH's requirement that a plaintiff be 'injured' would control and render that statute unconstitutional.
169. Id. at 60.
170. Lujan, 504 U.S. at 577.
171. Id.
172. Lujan, 504 U.S. at 576 (recognizing standing based solely on statutory requirements, without the presence of a separate injury, "would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch-one of the essential elements that identifies those 'Cases' and 'Controversies' that are the business of the courts rather than of the political branches.") (emphasis added).
173. See, e.g., Gene R. Nichol, Jr., Standing for Privilege: The Failure of Injury Analysis, 82 B.U. L. REV. 301, 316-18 (discussing Lujan under the heading "Standing's Absurdities").
174. See, e.g., id.
175. Jonathan E. Wells, Comment, Shouldn't Standing Be Closer to the Heart of Congressional Intent?, 49 EMORY L.J. 1359, 1395 (2000).
176. Id. ("[C]itizen suits do not pose separation of powers problems. Every citizen suit provision precludes filing of the action if the United States is prosecuting a case against the violator.").
177. 33 U.S.C § 1319(g)(6)(A)(i)-(iii).
178. 33 U.S.C. § 1319(g)(6)(B);
179. see 42 U.S.C. § 7604 (b)(1)(B) (Clean Water Act provision providing for preemption of citizen suits under certain circumstances).
180. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 188 n.4 (2000). The Court states: Certainly the federal Executive Branch does not share the dissent's view that such suits dissipate its authority to enforce the law.... [T]he Federal Government retains the power to foreclose a citizen suit by undertaking its own action.... And if the Executive Branch opposes a particular citizen suit, the statute allows the ... EPA to 'intervene as a matter of right.'
181. See Sunstein, supra note 109, at 647-48 (arguing that it does not violate Article III for a court to decide whether the Executive has violated or failed to enforce the law).
182. See supra text accompanying notes 103-05.
183. See supra note no and accompanying text.
184. See Fed. Election Comm'n v. Akins, 524 U.S. v. 34-36 (1998) (Scalia, J., dissenting).
185. Id. at 35-36.
186. Id. at 35 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 560 (1992)).
187. Id. Justice Scalia is careful to note that "it is a gross oversimplification to reduce the concept of a generalized grievance to nothing more than 'the fact that [the grievance] is widely shared.'"
188. Id. at 35.
189. The key problem, he believes, is that the plaintiff fails to allege some unique or greater injury that others suffering the same harm do not. Id.
190. Id. at 36.
191. Akins, 524 U.S. at 35-36.
192. Id. at 35 ("Even if both [possible plaintiffs] suffer burned arms they are different arms.") (emphasis in original).
193. Id. at 35-36.
194. See United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 688 (1973) ("To deny standing to persons who are in fact injured because many others are also injured, would mean that the most injurious and widespread ... actions could be questioned by nobody. We cannot accept that conclusion.").
195. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974);
196. United States v. Richardson, 418 U.S. 166, 179 (1974) ("Lack of standing within the narrow confines of Article III jurisdiction does not impair the [plaintiff's] right to assert his views in the political forum or at the polls.").
197. Richardson, 418 U.S. at 179. Consider, for example, the following hypothetical. Suppose that three months after his inauguration, a new President appoints an EPA Administrator who immediately ceases to enforce the Clean Air Act. Studies show that without the clean air standards embodied in the Act, rates of asthma and cardiopulmonary disease are likely to rise sharply, and those with such diseases are likely to get sicker. Yet until these effects surface, no one may be able to get standing to challenge the Administrator's failure to perform her statutory duties, because no one can show particularized injury in fact, even though the Clean Air Act's citizen suit provision ostensibly provides a right to sue. What political redress is available in this situation? Both the President and his EPA Administrator are invulnerable to short term attack by the electorate, since the President is just beginning his term and the Administrator is unelected. The President might ignore popular outrage on this matter; some presidents will stick to unpopular policies despite lack of popular support. Congress's options are limited: (i) defund other programs in retaliation (which may or may not be effective and will harm those other programs unduly); (2) hold hearings (which may have no effect at all); (3) impeach the President (likely politically untenable, perhaps overkill, and of dubious legality). A more effective solution: allow someone to sue, under the Clean Air Act's citizen suit provision, to require the EPA Administrator to do her duty and enforce the Act.
198. See Lee, supra note 2, at 626-27.
199. See supra note 143.
200. See Lee, supra note 2, at 626.
201. Id.
202. Id. (arguing that private rights-oriented judges have "used Article III to enshrine the dispute resolution vision in the Constitution").
203. Id. at 626.
204. Id. (referring to the attempts of public values-oriented justices to work within the private rights model as "an intellectually disastrous enterprise");
205. see also Bandes, supra note 73, at 229. ("[T]he unstated acceptance of the private rights model... leads to contorted logic when the Court wishes to deviate from [that] model.").
206. Justice Breyer's opinion for the Court in Akins provides an excellent example of a judge attempting to vindicate majoritarian values while navigating within the confines of the Court's strict Article III jurisprudence. See Fed. Election Comm'n v. Akins, 524 U.S. 11, 20-21 (1998) (citations omitted). One of his tactics is to articulate the established doctrine, but then skate fairly quickly over the facts and analysis, reaching a decision almost conclusorily. In this way, he avoids being drawn into the quagmire of meeting Justice Scalia on his own terms and arguing the concreteness or particularity elements in detail. Instead, he places as much emphasis on the public interest involved (the usefulness of the information sought by the plaintiffs) and the majoritarian nature of his holding (the statute requires the information to be made available) as on the doctrinal elements.
207. See id. (concluding that harm to plaintiff qualifies as injury in fact). Another, related mode of reasoning is to aggressively distinguish unfavorable precedents on their facts, so that it is not necessary to distinguish them on the law (which would, again, require the judge to grapple in detail with the undesirable doctrine).
208. See id. at 21-23 (distinguishing United States v. Richardson, 418 U.S. 166 (1974) from Akins on its facts).
209. See Sunstein, supra note 109, at 643-45 (using Lujan as an example of how "[b]efore Akins, it was fair to say that the bar on generalized grievances was moving from a prudential one to one rooted in Article III," and arguing that after Akins, it "is retained as ... prudential").
210. See infra Part III.B.
211. See infra Vart IV.
212. Akins, 524 U.S. at 19-26;
213. Lujan v. Defenders of Wildlife, 504 U.S. 555, 557-67 (1992).
214. E.g. Lujan, 504 U.S. at 560.
215. See supra note 120 and accompanying text.
216. Justice Blackmun, in dissent in Lujan, recognized this. See Lujan, 504 U.S. at 606 (Blackmun, J., dissenting) ("[A]s a general matter, the courts owe substantial deference to Congress' substantive purpose in imposing a certain procedural requirement.").
217. See Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 CORNELL L. REV. 393, 485 (1993) (arguing that standing should be available whenever Congress authorizes it by statute).
218. Justice Breyer holds something like a traditional public values view of adjudication. See STEPHEN BREYER, ACTIVE LIBERTY 17 (2005) [hereinafter BREYER, ACTIVE LIBERTY]
219. (arguing that judges "should try to find and finally say" what is the purpose underlying each statute.). He believes that the courts should allow "constitutional room ... for citizens, through their elected representatives, to govern themselves." Id. at 10.
220. As a result, he argues, "it should be possible to trace without much difficulty a line of authority for the making of governmental decisions back to the people themselves-either directly, or indirectly through those whom the people have chosen.... And this authority should be broad." Id. at 15. This view suggests that the courts, when in doubt, should defer to Congress ("those whom the people have chosen") on issues involving important governmental decisions. That, in turn, suggests that the Court should defer to Congress's decision to grant standing.
221. However, Justice Breyer's perspective differs from an orthodox public values model in two ways. First, he does not seek to vindicate public values directly through judicial decision making so much as through carrying out congressional intent, which in turn reflects the popular will. See BREYER, supra (explaining that "judicial restraint" is proper and that courts should not engage in lawmaking). Second, judges must occasionally "offer protection against governmental infringement of" certain constitutionally guaranteed freedoms, "including infringement by democratic majorities," thus frustrating majoritarian objectives. Stephen Breyer, Our Democratic Constitution, 77 N.Y.U. L. REV. 245, 249-250 (2002) [hereinafter Breyer, Our Democratic Constitution].
222. United States Fed. Election Comm'n v. Akins, 524 U.S. 11, 19 (1998).
223. Id. at 18-19.
224. Id. at 20.
225. Id. at 21.
226. See supra text accompanying notes 113-20.
227. One could argue that this holding only applies to cases similar to Akins, where the statute grants a statutory right to information. See Sunstein, supra note 109, at 642-43. After all, Justice Breyer did not proclaim a broad rule putting the standing question "in the hands of Congress," nor did he explicitly overrule Lujan on this point.
228. Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973) (citing Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 212 (1972) (White, J., concurring.));
229. see also Warth v. Seldin, 422 U.S. 490, 514 (1975) ("Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute.");
230. Trafficante, 409 U.S. at 212 (White, J., concurring) (noting that a statutory right of action supported a finding of standing where there would otherwise be none).
231. See, e.g., 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 397 (3d ed. 2000) ("there is good reason to afford Congress a wide berth in specifying... new forms of 'injury'");
232. William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 290-91 (1988) ("Standing ... is a question of substantive law, and the answers to standing questions will vary as the substantive law varies.");
233. Logan, supra note 120, at 42 ("In the statutory context, the Court should uniformly ... accord[] great deference to Congress' power to provide judicial redress to parties asserting even novel claims with attenuated causal relationships.").
234. Lujan v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring).
235. Id. at 574 (quoting Fairchild v. Hughes, 258 U.S. 126, 129 (1922)).
236. See Allen v. Wright, 468 U.S. 737, 754 (1984) ("This Court has repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.").
237. Cass R. Sunstein, What's Standing After Lujan: Citizen Suits, "Injuries, " and Article III, 91 MICH. L. REV. 163, 217 (1992).
238. See supra text accompanying note 121.
239. See supra text accompanying notes 103-04.
240. Scalia, supra note 102, at 895.
241. Sunstein, supra note 173, at 217.
242. Fletcher, supra note 169, at 223 ("[S]tanding is a preliminary jurisdictional requirement, formulated at a high level of generahty and applied across the entire domain of law.").
243. Lauf v. E.G. Shinner and Co., 303 U.S. 323, 330 (1938)
244. ("There can be no question of the power of Congress... to define and limit the jurisdiction of the inferior courts."). This power is grounded in (1) Article III's Exceptions and Regulations Clause, U.S. CONST, art. III, § 2, (2) Article I's provision granting Congress the power to "constitute inferior tribunals," and (3) Article Ill's provision granting Congress the power to "ordain and establish" the lower federal courts. See Lee, supra note 2, at 613.
245. Lee, supra note 2, at 634-35 ("In the context of standing, the congressional control principle manifests itself in Congress' broad power to create standing by enacting statutory causes of action.").
246. See id. at 617 ("The institution more reflective of majoritarian sentiment is permitted an important part in setting the agenda of a powerful but unrepresentative judiciary.").
247. Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 115 (1984) (arguing that Congress's lawmaking power "necessarily includes the authority to employ the federal judiciary to enforce the substantive statutory programs adopted by Congress").
248. Lee, supra note 2, at 634-35.
249. See (id.at 608 (arguing that a constitutional standing doctrine is inconsistent with the principle of congressional control over federal court jurisdiction).
250. See Cohens v. Virginia, 19 U.S. 264, 404 (1821) (asserting that "to decline the exercise of jurisdiction which is given ... would be treason to the constitution");
251. Logan, supra note 120, at 42 ("When a plaintiff asserts what is in the Court's view a 'generalized grievance,' separation of powers concerns counsel that the Court consider disposing of the case on prudential rather than article III grounds, reserving for the legislative branch the opportunity to determine [jurisdiction].").
252. Fed. Election Comm'n v. Akins, 524 U.S. 11, 24 (1998) (holding that widely shared interests "may count as an injury in fact"). This point was hardly new.
253. See Albert, supra note 59, at 487-88 (arguing that "collective harms" may qualify as constitutional injury and that the "size of the injured group" is not relevant to the issue of whether there is injury). However, it appears that no Supreme Court majority opinion had ever explicitly made it before Akins.
254. Akins, 524 U.S. at 23-24.
255. Id. The difference between "concrete" and "abstract" harms is discussed in detail infra Part III.B.2.
256. Leading Cases, supra note 13, at 253, 262 (analyzing Akins as failing "to articulate the outer limits of Congress's power to confer standing").
257. Akins, 524 U.S. at 23-24;
258. see CHEMERINSKY, supra note 1, at 91 ("The prohibition against generalized grievances prevents individuals from suing if their only injury is as a citizen or a taxpayer....").
259. Akins, 524 U.S. at 24.
260. Id. at 23-24 (citing Perkins v. Lukens Steel Co., 310 U.S. 113, 125 (1940)).
261. Id. at 24.
262. See id.
263. Id. at 23. (quoting Singer & Sons v. Union Pac. R.R. Co., 311 U.S. 295, 303 (1940)). It is worth noting that the Court has never explained very thoroughly why it believes citizen and taxpayer standing are problematic. One possible objection to them is that the mechanism by which the violation of the law harmed the plaintiff is so difficult to discern that the Court has no basis for evaluating or measuring whether an injury actually occurred.
264. See supra text accompanying notes 50-54. A structural constitutional objection is also possible: citizen and taxpayer standing may violate separation of powers by invoking the power of the non-majoritarian branch of the government to overturn majoritarian outcomes dictated by statute or the Constitution, thereby undermining the authority of Congress to make the laws.
265. See U.S. CONST, art. I, § 1. Probably the best objection, though, is prudential: the multiplicity of lawsuits that could result if anyone could challenge any alleged violation of the law could overwhelm the courts and crowd out claims by parties who have been personally and severely harmed by the actions of others.
266. Akins, 524 U.S. at 24.
267. See id. at 23-25.
268. See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 239 (10th ed. 1994).
269. Warth v. Seldin, 422 U.S. 490, 508 (1975).
270. Akins, 524 U.S. at 24. Justice Frankfurter had identified the same two possible sources for a valid injury several decades earlier.
271. See Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 152 (1951) (Frankfurter, J., concurring) (noting that standing could be based on "a governmental action ... that, if taken by a private person, would create a right of action cognizable by the courts," or "on an interest created by the Constitution or a statute").
272. Cf. Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 492 (1982) (Brennan, J., dissenting) (recommending a similar approach to determining injury in fact).
273. See Akins, 524 U.S. at 34-35 (Scalia, J., dissenting).
274. Id. at 34-36.
275. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-84 (2000) (analyzing injury in fact without reference to whether the statute created a legal right to be free of the alleged injury).
276. See, e.g., Sunstein, supra note 109, at 644 (arguing that Akins modifies standing doctrine so that "Congress is entirely authorized to grant standing to individuals who share an injury with many other people, even with all citizens");
277. Leading Cases, supra note 13, at 259. Recent circuit court cases involving standing issues commonly cite Akins for this proposition.
278. See, e.g., Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 496 (7th Cir. 2005);
279. Covington v. Jefferson County, 358 F.3d 626, 651 (9th Cir. 2004). The idea that the widely shared nature of a harm should be completely irrelevant to standing is hardly new.
280. See Albert, supra note 59, at 487-88 ("The size of the injured group is no more relevant... than the severity or kind of injury. Conceivably, a potential plaintiff class could include the entire population.").
281. Akins, 524 U.S. at 24.
282. Id. (emphasis added).
283. Id. (emphasis added).
284. See supra text accompanying notes 58-59.
285. Of course, as noted supra note 23 and accompanying text, the Court has vacillated on this issue.
286. See supra note 142 and accompanying text.
287. 504 U.S. 555, 563-568 (1992).
288. Craig v. Boren, 429 U.S. 190, 221 (1976) (Rehnquist, J., dissenting).
289. See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1179-80 (1989).
290. See id. at 1180. ("Only by announcing rules do we judges hedge ourselves in.").
291. Breyer, Our Democratic Constitution, supra note 161, at 270.
292. See id.
293. Id.
294. See Massachusetts v. Envtl. Prot. Agency, 127 S. Ct. 1438, 1453, 1456 (2007);
295. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004);
296. Vieth v. Jubelirer, 541 U.S. 267, 330 (2004) (Stevens, J., dissenting);
297. Devlin v. Scardelletti, 536 U.S. 1, 7 (2002)
298. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 204 (2000) (Scalia, J., dissenting).
299. Among the cases cited supra note 219, only Massachusetts v. EPA, Elk Grove and Devlin actually discuss the doctrine in a majority opinion as a potential ground for deciding the case, and none of the three actually decides the case on generalized grievances grounds.
300. See Massachusetts v. EPA, 127 S. Ct. at 1453-56;
301. Elk Grove, 542 U.S. at 12;
302. Devlin, 536 U.S. at 7.
303. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-577 (1992).
304. But see United States v. Hays, 515 U.S. 737, 743-44 (1995)
305. (discussing the doctrine as a ground for rejecting one of the appellant's claims, even though that rejection didn't decide the case). Even in Lujan, one could argue that the discussion of generalized grievances was dictum; the case may have been decided on injury grounds. See Lujan, 504 U.S. at 562, 573-577.
306. Massachusetts v. EPA, 127 S. Ct. at 1453, 1456. This case never actually uses the term "generalized grievances," but it is clear from Justice Stevens' use of the term "widely shared," and his citation to Akins, that he had the doctrine firmly in mind when composing the majority opinion.
307. See id. at 1456.
308. Vieth, 541 U.S. at 330 (Stevens, J., dissenting)
309. (citing Hays, 515 U.S. at 745).
310. Id. (quoting Hays, 515 U.S. at 745).
311. See Elk Grove, 542 U.S. at 12
312. (quoting Allen v. Wright, 468 U.S. 737, 751 (1984));
313. Devlin, 536 U.S. at 7
314. (quoting Allen, 468 U.S. at 751).
315. Elk Grove, 542 U.S. at 12
316. (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).
317. Vieth, 541 U.S. at 330
318. (Stevens, J., dissenting) (citing Hays, 515 U.S. at 745).
319. Id.
320. See, e.g., Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 496 (7th Cir. 2005);
321. Am. Canoe Ass'n, Inc. v. City of Louisa Water and Sewer Comm'n, 389 F.3d 536, 545-46 (6th Cir. 2004);
322. Baur v. Veneman, 352 F.3d 625, 629, 633-36 (2d Cir. 2003);
323. Pye v. United States, 269 F.3d 459, 469 (4th Cir. 2001);
324. Becker v. Fed. Election Comm'n, 230 F.3d 381, 389-90 (IST Cir. 2000);
325. DeMando v. Morris, 206 F.3d 1300, 1303 (9th Cir. 2000).
326. 389 F.3d at 546.
327. Id.
328. Id. at 545-46.
329. Id. at 545.
330. Id. at 545-46.
331. Becker v. Fed. Election Comm'n, 230 F.3d 381, 389-90 (ist Cir. 2000).
332. Id.
333. Id. at 390.
334. Compare 2 U.S.C. § 437(g)(8) (providing a cause of action under the Federal Election Campaign Act, at issue in Akins), with 33 U.S.C. §§ 1318(a)-(b) (monitoring and reporting requirements of the Clean Water Act, requiring reporting but not providing for a cause of action for failure to report), and 33 U.S.C. § 1365(a) (citizen suit provision of the Clean Water Act, providing a general cause of action for violations of the Act).
335. 422 F-3d 490, 492-94 (7th Cir. 2005).
336. Id.
337. Id. at 496.
338. Id. at 496-97.
339. Fed. Election Comm'n v. Akins, 524 U.S. 11, 24 (1998).
340. 352 F.3d 625,628 (2d Cir. 2003).
341. Id.
342. Id. at 635.
343. Id. at 635 n.9.
344. Id. at 635.
345. See Fed. Election Comm'n v. Akins, 524 U.S. 11, 23-24 (1998).
346. See id.
347. See id. at 35 (Scalia, J., dissenting) ("What is noticeably lacking in the Court's discussion of our generalized-grievance jurisprudence is all reference to two words that have figured in it prominently: 'particularized' and 'undifferentiated.'").
348. See Baur, 352 F.3d at 635.
349. Id. at 634
350. (citing 21 U.S.C. § 602 (2003)).
351. Id. at 635.
352. Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc.
353. U.S. 464,493 (1982) (Brennan, J., dissenting).
354. Logan, supra note 120, at 40.
355. See supra Part IV.B.
356. See supra note 142.
357. 163 U.S. 537 (1896).
358. 347 U.S. 483 (1954).
359. BREYER, ACTIVE LIBERTY, supra note 161, at 119.