What standing is good for

Virginia Law Review

Volumn 93, Issue 7, 2007, Pages 1663-1727

  Kontorovich, Eugene ^a  

^a NORTHWESTERN UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 37349110651     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (173)

1. Louis L. Jaffe, Standing Again, 84 Harv. L. Rev. 633, 633 (1971) (describing literature as "enormous");
2. see Erwin Chemerinsky, Constitutional Law: Principles and Policies 60 (3d ed. 2006) (observing that standing doctrine is perceived as "incoherent]" and has been "frequently attacked" in an "extensive" corpus of scholarship);
3. Laurence H. Tribe, American Constitutional Law 390 (3d ed. 2000) ("[T]he law of standing has for some time been one of the most criticized aspects of constitutional law.");
4. see also Nancy C. Staudt, Modeling Standing, 79 N.Y.U. L. Rev. 612, 614 (2004) (noting "countless" analyses of standing).
5. For a small sampling of the literature criticizing standing, see Martin H. Redish, The Federal Courts and the Political Order: Judicial Jurisdiction and American Political Theory 88-103 (1991);
6. William Fletcher, The Structure of Standing, 98 Yale L.J. 221 (1998);
7. David A. Logan, Standing to Sue: A Proposed Separation of Powers Analysis, 1984 Wisc. L. Rev. 37;
8. and Stephen L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan. L. Rev. 1371 (1988).
9. See Logan, supra note 1, at 37.
10. For some rare exceptions, see Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 Harv. L. Rev. 297, 307-09 (1979) (arguing that standing promotes individual autonomy),
11. and Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 881 (1983). See also infra note 31.
12. Mark V. Tushnet, The "Case Or Controversy" Controversy: The Sociology of Article III: A Response to Professor Brilmayer, 93 Harv. L. Rev. 1698, 1705 (1980) (arguing that standing law "serves no useful purpose"); see Fletcher, supra note 1, at 221. ("[S]tanding law ... has long been criticized as incoherent.").
13. Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N.C. L. Rev. 1741, 1786 (1999) ("Modern standing law is closer to a part of the political system than to a part of the legal system. It is characterized by numerous malleable doctrines and numerous inconsistent precedents. Judges regularly manipulate the doctrines and rely on selective citation of precedents to further their own political preferences.").
14. See Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies - And Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 635 (2006).
15. See, e.g., Richard A. Epstein, Bargaining with the State 216-17 (1993) (arguing against standing limitations for constitutional challenges to government action);
16. David R. Dow, Standing and Rights, 36 Emory L.J. 1195, 1197 (1987) (arguing for a reformulation of standing doctrine when "societal rights" are implicated); Fletcher, supra note 1, at 223 (urging courts to "abandon" standing requirements);
17. Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 Mich. L. Rev. 163, 167 (1992) (arguing that "the very notion of 'injury-in-fact' is not merely a misinterpretation of ... Article III but also a large-scale conceptual mistake" similar to early twentieth-century substantive due process);
18. Mark V. Tushnet, The New Law of Standing: A Plea for Abandonment, 62 Cornell L. Rev. 663, 664 (1977) (arguing that "the Court should refrain from disposing of cases on standing grounds").
19. See Richard A. Posner, The Federal Courts: Challenge and Reform 195 (1996);
20. Michael C. Jensen et al, Analysis of Alternate Standing Doctrines, 6 Int'l Rev. L. & Econ. 205, 209 (1986) (noting that "there is virtual unanimity" that the Supreme Court liberalized standing doctrine in the 1960s and 1970s); Pierce, supra note 5, at 1788-89 (arguing that FEC v. Akins represented a major liberalization of standing doctrine);
21. Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. Pa. L. Rev. 613, 645 (1999) (same). The inconsistency of the Court's standing decisions, however, makes it difficult to chart the direction of its jurisprudence. Most recently, the Court restricted standing in Establishment Clause cases, apparently limiting - and questioning - a liberalizing precedent that had made the First Amendment perhaps the least restrictive field of constitutional standing. See Hein v. Freedom From Religion Found., 127 S. Ct. 2553, 2568-70 (2007) (holding that taxpayers do not have standing to challenge the executive branch's expenditure of discretionary funds on faith-based initiatives because those funds had not been appropriated by Congress).
22. This Article also does not claim to exhaust the potentially positive functions of standing. Professor Stearns has shown that standing prevents the manipulation of intransitive preferences among Justices by strategic litigants. See Maxwell L. Stearns, Standing and Social Choice: Historical Evidence, 144 U. Pa. L. Rev. 309 (1995) [hereinafter Stearns, Historical Evidence];
23. Maxwell L. Stearns, Standing Back from the Forest: Justiciability and Social Choice, 83 Cal. L. Rev. 1309, 1325 n.58 (1995) [hereinafter Stearns, Standing Back].
24. See Section V.D.
25. See Stearns, Standing Back, supra note 9, at 1325 n.58 and accompanying text (noting the dominance of the cause-of-action theory); see also infra note 31.
26. U.S. Const. art. III, § 2.
27. The extent to which standing and related rules truly stem from the express or implicit command of Article III has been a subject of some debate. Compare Sunstein, supra note 7, at 169 (arguing that standing is a twentieth-century invention with value-laden goals), with Ann Woolhander & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689 (2004) (defending the historical basis of standing).
28. See Letter from John Jay, Chief Justice, U.S. Supreme Court, to George Washington, President, United States of America (July 20, 1793), reprinted in Richard H. Fallon, Jr. et al., The Federal Courts and the Federal System 79 (5th ed. 2003) (declining to answer questions from Secretary of State Thomas Jefferson on proper relations toward Britain and France during the Napoleonic Wars).
29. Allen v. Wright, 468 U.S. 737, 750 (1984).
30. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 472 (1982).
31. See Allen, 468 U.S. at 750-51. The most important prudential rule prevents litigants from asserting the rights of others (jus tertii). See, e.g., McGowan v. Maryland, 366 U.S. 420 (1961).
32. Allen, 468 U.S. at 751.
33. A quarter-century ago, it was already "customary in writing on standing to warn the reader" of its amorphous character. Karen Orren, Standing to Sue: Interest Group Conflict in the Federal Courts, 70 Am. Pol. Sci. Rev. 723, 723 n.1 (1979).
34. See Valley Forge, 454 U.S. at 475.
35. Id. at 485.
36. See David P. Currie, Federal Jurisdiction in a Nutshell 26 (4th ed. 1999) ("It hardly seems an appropriate reason for denying relief ... that the Government has harmed many citizens rather than only a few.");
37. James E. Pfander, Principles of Federal Jurisdiction 34 (2006) (observing that wrongful conduct often inflicts cognizable injuries on large classes of people).
38. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974).
39. See generally Martin H. Redish & Andrianna D. Kastanek, Settlement Class Actions, the Case-or-Controversy Requirement, and the Nature of the Adjudicatory Process, 73 U. Chi. L. Rev. 545 (2006) (arguing that the Article III case-or-controversy requirement demands genuine adversity between parties).
40. See Fletcher, supra note 1, at 247-48; Akhil Reed Amar, Law Story, 102 Harv. L. Rev. 688, 718 n.154 (1989)
41. (reviewing Paul M. Bator et al., Hart and Wechsler's The Federal Courts and the Federal System (3d ed. 1988)) (arguing that "[a]ny legitimate interest in guaranteeing adverse presentation of issues can easily be handled" without the standing doctrine).
42. See Richard A. Epstein, Standing and Spending - The Role of Legal and Equitable Principles, 4 Chap. L. Rev. 1, 47 (2001) ("[Ideological plaintiffs ... will address the issues of principle raised in litigation precisely because they care as much about the structure of American government independent of the impact on their own pocketbooks.");
43. William M. Landes & Richard A. Posner, The Economics of Anticipatory Adjudication, 23 J. Legal Stud. 683, 718 (1994) (arguing that ideological plaintiffs have "both the desire and the resources to mount a vigorous defense of their position").
44. See Epstein, supra note 26, at 46; Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. Pa. L. Rev. 1033, 1038 (1968) ("[I]nvesting money in a lawsuit from which one is to acquire no further monetary profit argues ... a quite exceptional kind of interest .... From this I would conclude that, insofar as the argument for a traditional plaintiff runs in terms of the need for effective advocacy, the argument is not persuasive.").
45. See Kenneth C. Scott, Standing in the Supreme Court - A Functional Analysis, 86 Harv. L. Rev. 645, 674 (1973) ("If plaintiff did not have the minimal personal involvement and adverseness which Article III requires, he would not be engaging in the costly pursuit of litigation.").
46. See Fletcher, supra note 1, at 231.
47. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992) ("To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an 'individual right' vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws are faithfully executed.").
48. See Amar, supra note 25, at 718 n.154 ("[A] properly framed case in which a plaintiff has 'standing' is simply one in which she has a cause of action."); David P. Currie, Misunderstanding Standing, 1981 S. Ct. Rev. 41, 43 ("Whether ... labeled 'standing' or 'cause of action,' the question is whether the statute or Constitution implicitly authorizes the plaintiff to sue.");
49. Cass R. Sunstein, Standing and the Privatization of Public Law, 88 Colum. L. Rev. 1432 (1988); Sunstein, supra note 7, at 166 ("The relevant question is ... whether the law ... has conferred on the plaintiffs a cause of action."); see also Fletcher, supra note 1, at 223 n.18 (citing numerous commentators concurring in this view).
50. See Clifford G. Holderness, Standing, in 3 New Palgrave Dictionary of Economics and the Law 505-06 (Peter Newman ed., 1998);
51. Michael C. Jensen et al., Analysis of Alternate Standing Doctrines, 6 Int'l Rev. L. & Econ. 205 (1986); Scott, supra note 28, at 669-78; Stearns, Historical Evidence, supra note 9 (showing how modern standing case law and its development is consistent with what social choice theory would predict); Stearns, Standing Back, supra note 9, at 1349-62;
52. Vikramaditya S. Khanna, Towards a Functional Analysis of Standing (Harvard Law & Econ. Discussion Paper No. 335, 2002), available at http://ssrn.com/abstract=304390 (discussing paucity of "functional analysis" of standing law).
53. A very brief discussion of prudential standing rules can also be found in William M. Landes & Richard A. Posner, The Economics of Anticipatory Adjudication, 23 J. Legal Stud. 683, 718-19 (1994) (discussing economic rationales for barring jus tertii suits and noting that allowing third parties to have standing makes it difficult to "allocate property rights to legal claims"). This Article shows that what Landes and Posner noted about jus tertii suits can be true even when primarily affected parties sue, and that standing doctrine can be a response to this problem.
54. Political scientists have also devoted little attention to the doctrine. For some rare exceptions, see Gregory J. Rathjen & Harold J. Spaeth, Access to the Federal Courts: An Analysis of Burger Court Policy Making, 23 Am. J. Pol. Sci. 360 (1979);
55. C.K. Rowland & Bridget Jeffrey Todd, Where You Stand Depends on Who Sits: Platform Promises and Judicial Gatekeeping in the Federal District Courts, 53 J. Pol. 175 (1991); Staudt, supra note 1 (presenting statistical analysis demonstrating that when underlying law is unclear, judges use standing doctrine to advance personal policy preferences).
56. Jensen et al., supra note 32, at 210-11.
57. Id. at 206-07. Jensen et al. only mention suits against the government in a single paragraph and do not differentiate between constitutional and statutory claims. Id. at 212. They correctly note that their central point carries over from private law to public, but they do not go on to explore this. See also Scott, supra note 28, at 646 (arguing that economic analysis of standing must distinguish suits against government officials from litigation between private parties because the "important considerations ... overlap to a degree but are far from identical").
58. "Inefficiency" is used here in the Kaldor-Hicks sense to refer to the blocking of an action whose social benefits exceed its costs.
59. Scott, supra note 28, at 691-92.
60. Compared to property rules, liability rules promote easy transfer of entitlements and thus on this score may promote efficient allocations. But there is a greater chance that the transfer price under a liability rule would not be accurate, thus encouraging either too much or too little transfer.
61. See Flast v. Cohen, 392 U.S. 83 (1968) (upholding taxpayer standing to challenge government spending on Establishment Clause grounds). Indeed, challenges to Ten Commandments displays on public land proceed without the courts making a peep about standing. See, e.g., McCreary County v. ACLU, 545 U.S. 844 (2005); Van Orden v. Perry, 545 U.S. 677 (2005). (The Court did note that the plaintiff physically "encountered]" the objectionable display - an observation apparently intended to suggest the plaintiff does not have a general injury. See Van Orden, 545 U.S. at 682.) At the same time, there is no taxpayer or citizen standing to challenge in-kind subsidies of religious institutions, suggesting at least some tension or confusion in the Establishment Clause standing doctrine. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 485-86 (1982).
62. Newdow v. Bush, 355 F. Supp. 2d 265, 268 (D.D.C. 2005) (describing the plaintiff challenging the 2005 inauguration as a "well-known atheist litigant"). The court found, albeit with some difficulty, that Newdow's exposure to "offensive religious materials" constituted an injury in fact, but found he lacked the "redressability" crucial to standing because of doubts about the court's ability to enjoin the inauguration. Id. at 279-82. Newdow had brought a similar suit against the 2001 inauguration, where the court found he did not even have an injury. Id. at 268-89. The crucial difference was that in the second case Newdow had obtained a ticket to the inauguration, whereas in 2001 he had said he would watch it on television. Id. at 269, 271.
63. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1107 (1972);
64. A. Mitchell Polinsky, Resolving Nuisance Disputes: The Simple Economics of Injunctive and Damage Remedies, 32 Stan. L. Rev. 1075, 1078 (1980).
65. See, e.g., Allen v. Wright, 468 U.S. 737 (1984).
66. See James E. Krier & Stewart J. Schwab, Property Rules and Liability Rules: The Cathedral in Another Light, 70 N.Y.U. L. Rev. 440, 464 (1995) (contending that difficulty in assessing private values argues for property rules in almost all situations).
67. See Elizabeth Hoffman & Matthew L. Spitzer, Experimental Tests of the Coase Theorem with Large Bargaining Groups, 15 J. Legal Stud. 149, 171 (1986) (concluding from experiments with students that transaction costs of negotiating are not prohibitive when there are fewer than thirty-eight parties);
68. see also Ward Farnsworth, Do Parties to Nuisance Cases Bargain After Judgment? A Glimpse Inside the Cathedral, 66 U. Chi. L. Rev. 373, 384 (1999) (presenting case studies suggesting that post-injunction bargaining often does not occur even when there are few parties).
69. See Hoffman & Spitzer, supra note 43, at 171.
70. See Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (holding that the Fourth Amendment provides a basis for judicial relief even without a congressionally created cause of action).
71. See Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 988 (N.D. Cal. 2006). This hypothetical is motivated by programs like the Computer Assisted Passenger Profiling System II and the Defense Department's Total Information Awareness Program, the details of which remain classified.
72. The U.S. Court of Appeals for the Sixth Circuit has recently denied standing in a case involving a Fourth Amendment challenge to the National Security Agency's data mining program. See ACLU v. Nat'l Sec. Agency, 493 F.3d 644 (6th Cir. 2007). Because of the program's secrecy, the plaintiffs were not permitted to know whether their information had been mined. Id. at *1. In concurrence, Judge Gibbons observed that this inability to discover the particular treatment of each plaintiff was the source of the standing problem. Id. at *34 (Gibbons, J., concurring). But see Hepting, 439 F. Supp. 2d. at 1000 (holding that customers of telephone company have standing to bring suit alleging that the company turned over millions of phone records to the government for data mining because while they could not show that their records were involved, they were within a "dragnet" designed to round up the communications of the company's customers).
73. See Fallon et al., supra note 14, at 165.
74. See, e.g., Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974) (holding that a Senator has standing to challenge constitutionality of pocket veto because it negates his vote for the vetoed legislation); Mitchell v. Laird, 488 F.2d 611 (D.C. Cir 1973) (holding that Congressmen have standing to challenge the Vietnam War on separation of powers grounds but dismissing on political question grounds); Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973) (finding legislative standing but no citizen standing to challenge firing of Watergate Special Prosecutor).
75. 521 U.S. 811 (1997); see also Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999) (citing Raines as the reason for not following the circuit's precedents from the 1970s).
76. Raines, 521 U.S. at 828-29.
77. But see Allen v. Wright, 468 U.S. 737, 757 (1984).
78. One could imagine the opposite problem - what might be called "intentional jointness," where the government broadens the scope of a constitutionally dubious action to include a great number of people specifically to create standing difficulties. If the government ceases a challenged action to evade review, courts will entertain a challenge despite its mootness. Presumably courts could take the same approach to intentional jointness.
79. See Ronald Dworkin, Taking Rights Seriously 184-205 (1977) ("The prospect of utilitarian gains cannot justify preventing a man from doing what he has a right to do.").
80. See id. at 193-94.
81. See Redish, supra note 1, at 93-95 (arguing that issues involved in litigation go far beyond the interests of the particular plaintiff, and thus the injury-in-fact requirement artificially limits the ability of courts to vindicate those interests); Laurence H. Tribe, The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence, 99 Harv. L. Rev. 330, 332-34 (arguing that there are some rights that are not individual but that try to structure society in particular ways, and that "individuals cannot waive them because individuals are not their sole focus").
82. Owen M. Fiss, Against Settlement, 93 Yale L.J. 1073, 1084-86 (1984) (arguing against settlement of cases on the grounds that they deprive courts of an opportunity to interpret the values implicit in the law "and to bring reality into accord with them").
83. See Isby v. Bayh, 75 F.3d 1191 (7th Cir. 1991), which held that the constitutional status of class action claims does not prevent their settlement: Where ... constitutional claims are asserted, we recognize that public interests may potentially conflict with the desire of the parties to settle their dispute. The presence of constitutional claims does not, however, prevent us from applying the principles that guide our review which "allow ample room for settlement and compromise." Id. at 1997 (quoting Armstrong v. Bd. of Sch. Dirs., 616 F.3d 305, 312-13 (7th Cir. 1980)).
84. See Epstein, supra note 26, at 34 (arguing for taxpayer standing to check the constitutionality of legislation); Redish, supra note 1, at 93-95 (arguing that the injury-in-fact requirement interferes with the Court's function as a countermajoritarian check on the political branches).
85. See Robert Cooter, The Strategic Constitution 258 (2000).
86. 50 N.W. 403 (Wis. 1891).
87. See Santabello v. New York, 404 U.S. 257, 260 (1971) (suggesting courts could not function were it not for the high rate of plea bargains by criminal defendants).
88. See Frank H. Easterbrook, Criminal Procedure as a Market System, 12 J. Legal Stud. 289, 317 (1983) (arguing that plea bargaining is underpinned by the "autonomy value" of rights, defined as "the right to waive one's rights as one method of exercising them");
89. see also Lynn A. Baker, The Prices of Rights: Toward A Positive Theory of Unconstitutional Conditions, 75 Cornell L. Rev. 1185, 1217-18 (1990) (noting that "ours is primarily a market economy and that economic structure has inescapable implications for the meaning and operation of constitutional rights," such as the fact that the exercise of rights has an explicit or implicit price).
90. Inalienability is actually a matter of degree, and almost all rights are inalienable in some weak sense. A right is inalienable in the strongest sense if it cannot be waived or bargained away in whole or in part for any reason. Perhaps only the Thirteenth Amendment is inalienable in this sense. See Bailey v. Alabama, 219 U.S. 219, 241-43 (1911) (holding unenforceable a voluntary personal service contract that contemplates enforcement through specific performance or punitive damages); see also Eugene Kontorovich, Liability Rules for Constitutional Rights: The Case of Mass Detentions, 56 Stan. L. Rev. 755, 763-64 n.18 (2004) (describing Thirteenth Amendment's ban on "involuntary servitude" as an inalienability rule);
91. Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. Pa. L. Rev. 1293, 1387-88 (1984). A weaker inalienability rule forbids trading the right, but allows simple waiver and abandonment. The right to vote is of this kind. One cannot sell it, but one can waive it, as most people do. (By contrast, in many Western nations, voting is obligatory because it is seen as serving primarily public purposes; the absence of such laws in the United States is due in part to the presumptive waivability of rights.)
92. Most constitutional rights are alienable to the same extent as common-law tort rights. One can certainly waive or "alienate" by selling a claim to the defendant through settlement. But one cannot sell the rights to third parties, or prospectively sell unmatured claims - though some state courts have begun to ease restraints on alienation of tort claims. See Michael Abramowicz, On the Alienability of Legal Claims, 114 Yale L.J. 697, 699 (2005) (presenting economic analysis regarding the effects of relaxing restrictions on alienability for torts).
93. See Adams v. Carroll, 875 F.2d 1441, 1443 n.2 (9th Cir. 1989) (observing that "most constitutional rights are waivable"); Tribe, supra note 56, at 330 ("In our constitutional system, rights tend to be individual, alienable .... [and] subject to binding waiver or alienation.").
94. See Jason Mazzone, The Waiver Paradox, 97 Nw. U. L. Rev. 801, 871 (2003) (observing that while the "waiver doctrine" generally permits forfeiting or even bargaining away criminal defense rights in exchange for some benefit from the government, the parallel doctrine of unconstitutional conditions severely restricts individuals' ability to bargain away First Amendment rights).
95. United States v. Goodwin, 457 U.S. 368, 378 (1982) (noting legitimacy of plea bargaining).
96. Faretta v. California, 422 U.S. 806, 836 (1975).
97. Id. at 834 ("The defendant ... will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage.").
98. See, e.g., Harris v. City of Zion, 927 F.2d 1401 (7th Cir. 1991) (holding unconstitutional cross and other Christian symbolism in city logo and seal adopted in 1902); Buono v. Norton, 212 F. Supp. 2d 1202, 1205 (C.D. Cal. 2002) (holding that large wooden cross in national park, originally erected in 1934 as a veterans' memorial, violates Establishment Clause), aff'd, 371 F.3d 543 (9th Cir. 2004).
99. Indeed, the Supreme Court's recent Ten Commandments decisions adopt this approach. In two cases decided the same day, a display erected in the 1950s and that encountered no protest for decades was found constitutional, while one put up in 1999 and immediately challenged was struck down. Indeed, the Court noted in the former case that the plaintiff "apparently walked by the monument for a number of years before bringing this lawsuit." Van Orden v. Perry, 545 U.S. 677, 691 (2005). Justice Breyer placed particular reliance on the forty-year history of acquiescence. His comments suggest that the general public's acceptance of a religious display because of its nonreligious benefits can make it constitutional, despite a minority of belated dissenters feeling otherwise. See id. at 702-03 (Breyer, J., concurring) ("40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner).... Those 40 years suggest that the public visiting the capitol grounds has considered the religious aspect of the tablets' message as part of what is a broader moral and historical message reflective of a cultural heritage."). While the Court apparently took the public consent as evidence that people did not perceive the display to endorse religion (and thus relevant to the merits), it could just as easily have meant that the public did not mind the endorsement of religion, or thought that the benefits of the display compensated for the violation of their Establishment right. See also Freethought Soc'y of Greater Phila. v. Chester County, 334 F.3d 247, 250, 265-66 (3d Cir. 2003) (upholding eighty-two-year display of Ten Commandments in courthouse in part because of long history of acquiescence, including by the plaintiff, who "noticed the plaque as early as 1960 but was apparently not bothered enough by it to complain until 2001").
100. See Erie Telecomms. v. City of Erie, 853 F.2d 1084, 1096 (3d Cir. 1988) ("[Constitutional rights, like rights and privileges of lesser importance, may be contractually waived ....").
101. See, e.g., Lynch, Inc. v. SamataMason Inc., 279 F.3d 487, 489 (7th Cir. 2002) ("Because the parties are not diverse, any suit to enforce the settlement agreement ... would have to be brought in state court even though the settlement was of federal ... claims.").
102. See Frank H. Easterbrook, Insider Trading, Secret Agents, Evidentiary Privileges, and the Production of Information, 1981 Sup. Ct. Rev. 309, 347 (1981) ("One aspect of the value of a right - whether a constitutional right or title to land - is that it can be sold and both parties to the bargain made better off. A right that cannot be sold is worth less than an otherwise-identical right that may be sold. Those who believe in the value of constitutional rights should endorse their exercise by sale as well as their exercise by other action.").
103. 418 U.S. 166 (1974).
104. See Richard A. Posner, Economic Analysis of Law 533, 598 (6th ed. 2003).
105. Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 80 (1978) (emphasis added).
106. 380 U.S. 24 (1965).
107. Id. at 26 ("Petitioner further urges that since a defendant can waive other constitutional rights without the consent of the Government, he must necessarily have a similar right to waive a jury trial").
108. Id. at 36.
109. Id. (emphasis added).
110. See, e.g., People v. Sharp, 499 P.2d 489, 493 (Cal. 1972) ("[C]onstitutional language granting the right to the assistance of counsel lends no express support to a claim that an accused has the constitutional right to defend without counsel .... [T]he right to waive a constitutional protection is not itself necessarily a right of constitutional dimensions." (citing Singer, 380 U.S. 24)).
111. 422 U.S. 806 (1975).
112. See id. at 821-32.
113. See id. at 820 n.15; Singer, 380 U.S. at 28-34.
114. Faretta, 422 U.S. at 820 n.15.
115. Id. (emphasis added).
116. Singer, 380 U.S. at 34-35.
117. 542 U.S. 1, 15 n.7 (2004).
118. Id. at 9.
119. Id. at 15 ("Newdow's rights ... cannot be viewed in isolation. This case concerns not merely Newdow's interest in inculcating his child with his views on religion, but also the rights of the child's mother as a parent ....").
120. See id. at 14 & n.6, 17.
121. Newdow v. U.S. Congress, 313 F.3d 500, 505 (9th Cir. 2002), rev'd, 542 U.S. 1 (2004).
122. Newdow had also raised constitutional claims in his own name, arguing that the Establishment violation harmed his ability to teach his daughter his religious views. See Elk Grove, 542 U.S. at 16. This claim also overlapped with the daughter's Establishment Clause right in that its successful exercise would prevent the daughter from acquiescing. The Court denied Newdow's standing to assert his own claim as well. Id. at 16-17.
123. 547 U.S. 103 (2006).
124. Id. at 137-38 (Roberts, C.J., dissenting).
125. Id. at 114-15 (majority opinion).
126. Calabresi & Melamed, supra note 40, at 1106-10.
127. See Abraham Bell & Gideon Parchomovsky, Pliability Rules, 101 Mich. L. Rev. 1. 5-6 (2002).
128. See id. at 33-39.
129. U.S. Const. amend. V; see also Kontorovich, supra note 64, at 777 (explaining that the Takings Clause announces a liability rule for property rights).
130. Professor Fallon has recently noted that standing doctrine seems motivated by concerns about the cost of injunctive remedies, particularly ongoing supervisory decrees, and that such concerns would fall away in a damages regime. Fallon, supra note 6, at 650-51, 665-66. While the solution may be similar, this is an entirely different remedial concern from the one discussed here.
131. Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 69 (1996) (arguing that decisions of the Court "may well have major social effects just by virtue of their status as communication").
132. An existing judicial determination of the issue could be used to get an injunction in subsequent cases where jointness is not a problem. Precedent has been described as a public good, see William M. Landes & Richard A. Posner, Adjudication as a Private Good, 8 J. Legal Stud. 235, 240 (1979), though it could also be a public bad.
133. See Christopher L. Eisgruber, Is the Supreme Court an Educative Institution?, 67 N.Y.U. L. Rev. 961, 964 (1992) (arguing that the Supreme Court has an educational role).
134. See Calabresi & Melamed, supra note 40, at 1096-98.
135. See 11A Charles Alan Wright et al., Federal Practice and Procedure § 2944, at 94 (2d ed. 1995) ("[I]f a constitutional violation is established, usually no further showing of irreparable injury is necessary."); id. § 2948.1 n.21 (collecting cases); Douglas Laycock, The Triumph of Equity, 56 Law & Contemp. Probs. 53, 57 (1993) ("Injunctions are routine in all civil rights and constitutional litigation ....").
136. See Kontorovich, supra note 64, at 758 (demonstrating the general belief in a near-automatic right to injunctions for constitutional violations).
137. See Eugene Kontorovich, The Constitution in Two Dimensions: A Transaction Cost Analysis of Constitutional Remedies, 91 Va. L. Rev. 1135 (2005) (showing how liability rules are used in the prior restraint doctrine, Eighth Amendment Bail Clause, procedural due process, Fourth Amendment search and seizure rules, and the Fifth Amendment privilege against self-incrimination).
138. Id. at 1165-69.
139. See Laycock, supra note 107, at 54-57 (arguing that equitable relief is the norm in a much broader area of private law than generally appreciated).
140. See Kontorovich, supra note 109, at 1147-48 (discussing valuation difficulties with constitutional rights).
141. Error is only a social problem if it is systematically biased.
142. See Nancy C. Staudt, Taxpayers in Court: A Systematic Study of a (Misunderstood) Standing Doctrine, 52 Emory L.J. 771, 776 n.22 (2003) (noting that since judges are themselves taxpayers, one might think that every judge would have a conflict of interest in presiding over a taxpayer-standing suit).
143. The discussion here holds to one side questions about the extent to which the government internalizes costs. See Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. Chi. L. Rev. 345 (2000). It also assumes the government acts as an agent for society at large rather than pursuing its own agenda. Clearly, if internalization and agency are problematic, it weakens the analysis of this Article, along with much of the rest of constitutional theory.
144. This is the practice where a subsequent plaintiff uses the victory of a prior plaintiff against a common defendant to conclusively establish facts or issues common to both cases. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 337 (1979).
145. United States v. Mendoza, 464 U.S. 154 (1984).
146. If the first suit was resolved by the Supreme Court, the effect on subsequent litigation would be the same under collateral estoppel as under stare decisis. Otherwise the free-rider problem would be reduced because free riding would only be possible within appellate circuits where plaintiffs had won.
147. In a similar but narrower vein, as an alternative to standing doctrine, Professor Brilmayer has suggested eliminating the stare decisis and collateral estoppel effects of judgments adverse to the plaintiff whose standing is in doubt. See Brilmayer, supra note 3, at 309.
148. See, e.g., Frothingham v. Mellon, 262 U.S. 447 (1923).
149. Tribe, supra note 1, at 421.
150. Hein v. Freedom From Religion Found., 127 S. Ct. 2553, 2563 (2007) ("[T]he interest of a federal taxpayer in seeing that Treasury funds are spent in accordance with the Constitution does not give rise to the kind of redressable 'personal injury' required for Article III standing.").
151. See id. at 2574 (Scalia, J., concurring).
152. Id. at 2563 (majority opinion) ("[T]the interests of the taxpayer are, in essence, the interests of the public-at-large.").
153. Frothingham, 262 U.S. at 487.
154. See Staudt, supra note 114, at 784 (showing that federal courts bar federal taxpayer standing but may permit municipal taxpayer standing).
155. See Flast v. Cohen, 392 U.S. 83 (1968). But see Hein, 127 S. Ct. at 2568-69 (holding that the Establishment Clause exception to taxpayer suits does not apply to discretionary spending by executive branch, and describing Flast as a "narrow exception" that has "largely been confined to its facts").
156. See Staudt, supra note 114, at 776 ("[T]he goal of the lawsuit is to halt government spending or, in the alternative, to re-fashion it to ensure the spending projects comport with existing statutory or constitutional norms.").
157. Newdow v. Bush, 355 F. Supp. 2d 265, 278 (D.D.C. 2005).
158. The same can be said of the nexus requirements imposed on plaintiffs in statutory rights cases like Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
159. See Kontorovich, supra note 64; Kontorovich, supra note 109.
160. See, e.g., Cass R. Sunstein, Standing and the Privatization of Public Law, 88 Colum. L. Rev. 1432 (1988) (arguing that applying standing limitations, which are based on common-law concepts of injury, to administrative action improperly constitutionalizes common-law notions of injury).
161. See ACLU v. Nat'l Sec. Agency, 493 F.3d 644, 658 n.19 (6th Cir. 2007) (holding that the standing determination for statutory claims differs from constitutional claims in that Congress can create injury in fact for the former but not the latter); Cass R. Sunstein, Standing Injuries, 1993 S. Ct. Rev. 37, 60 (suggesting that injury-in-fact requirements may be proper in constitutional cases on constitutional avoidance grounds).
162. See Sunstein, supra note 7.
163. This assumes that the illegal feature of the program is integral to it, so that enjoining the harm effectively blocks the entire program.
164. See Cooler, supra note 60, at 249 (describing the "equality constraint" on constitutional rights under which "one person's liberty cannot change without the same change in everyone's liberty").
165. This is truer after the Reconstruction Amendments. Many questions remain, however, about the availability of constitutional rights abroad. Compare J. Andrew Kent, A Textual Case Against a Global Constitution, 95 Geo. L.J. 463 (2007) (arguing that aliens subject to extraterritorial U.S. government action do not enjoy constitutional protection),
166. with Jules Lobel, The Constitution Abroad, 83 Am. J. Int'l. L. 871 (1989) (arguing that the Constitution should apply to aliens abroad).
167. See Ronald D. Rotunda & John E. Nowak, 1 Treatise on Constitutional Law § 2.13(f)(ii)(5)-(7) (4th ed. 2007); Logan, supra note 1, at 48-49. For an example of how standing can be denied for the same type of injury when brought as a constitutional claim but granted in a suit pursuant to a statute authorizing action by "any person," compare United States v. Richardson, 418 U.S. 166 (1974) (holding that a taxpayer asserting a constitutional claim to access information on CIA spending did not have standing), with FEC v. Akins, 524 U.S. 11 (1998) (holding that voters asserting a statutory claim to access information did have standing).
168. See, e.g., Sunstein, supra note 7, at 179. See generally Jaffe, supra note 27.
169. See Redish, supra note 1, at 103.
170. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974); Redish, supra note 1, at 101-03; Brilmayer, supra note 3, at 307-09; Epstein, supra note 26, at 29-30; Jensen et al., supra note 8, at 211-12; Scott, supra note 28, at 675.
171. The representation problem in class actions arises not only because the absent class members will be bound by the collateral estoppel effect of the judgment, as Professor Brilmayer has suggested, but also because of the immediate effect of an injunction. See Brilmayer, supra note 3, at 308.
172. The situation is analogous to smoking or asbestos exposure class actions that seek to simultaneously espouse the claims of dead, symptomatic, and asymptomatic individuals. While all have suffered the same legal injury, the vast difference in the degree and nature of their harms may make symptomatic plaintiffs poor representatives of asymptomatic ones. Indeed, the two groups may have opposing interests, with one side favoring a cash judgment that would ruin the defendant but would provide immediate relief, and the other favoring the establishment of a trust that would only pay out a small portion of its assets in the present period but ensure that the defendant company will be around to pay medical expenses many years later.
173. An interesting implication of standing's jurisdictional status - which shows the complex ways standing can interact with developments in substantive rights - is that a plaintiff challenging state action under, say, the Establishment Clause, might not have standing in federal court. He could, however, have standing to pursue the same claim in state court. As a result of the incorporation doctrine, states are bound by most of the Bill of Rights, but not by the jurisdictional limitations of Article III. If standing policies were taken into account at the merits stage, they would be "incorporated" into the state level as well as part of the substantive federal law.