Relative standing

Georgetown Law Journal

Volumn 102, Issue 4, 2014, Pages 1191-1250

  Re, Richard M ^a  

^a HARVARD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84899894424     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (290)

1. See infra note 7. Many plaintiffs appear to have standing to challenge the distinct FISA-authorized metadata surveillance programs that are now known to monitor vast numbers of persons, as revealed by Edward Snowden just months after Clapper. See 50 U.S.C. § 1861 (2006 & Supp. V 2012). As to the § 1881a surveillance at issue in Clapper, however, "[a]ny plaintiffs would probably still face the significant hurdle of showing that the government has spied on them in particular, or their foreign correspondents.," Margot Kaminski, PRISM's Legal Basis: How We Got Here, and What We Can Do to Get Back, ATLANTIC (June 7, 2013, 4:53 PM), http://www.theatlantic.com/national/archive/ 2013/06/prisms-legal-basis-how-we-got-here-and-what-we-can-do-to-get-back/276667
2. see also ANDREW NOLAN, CONG. RESEARCH SERV., R43107, FOREIGN SURVEILLANCE AND THE FUTURE OF STANDING TO SUE POST-CLAPPER 12 (2013); infra section IV.A.
3. See, e.g., Vikram David Amar, The First of Many Expected Five-Four Rulings at the Supreme Court This Term: Clapper v. Amnesty International USA Rejects Plaintiffs' Standing to Challenge Foreign Surveillance, VERDICT (Mar. 1, 2013), http://verdict.justia.com/2013/03/01/the-first-of-many-expected-five- four-rulings-at-the-supreme-court-this-term ("Clapper reminds us that sometimes the Court's denial of standing means that a particular kind of challenge may never be easily resolved by courts on the merits."))
4. Noah Feldman, Are They Watching You? That's a Secret, BLOOMBERG (Mar. 3, 2013, 6:30 PM), http://www.bloomberg.com/news/2013-03-03/are-they-watching-you- court-says-that-s-a-secret.html ("The plaintiffs, represented by the American Civil Liberties Union, had a perfect rejoinder to [the government's] absurdist arguments: If we don't have standing to sue, no one ever will, and the government's post-2008 surveillance program will never be subject to constitutional scrutiny.,")).
5. Months after prevailing in Clapper, the United States began informing criminal defendants that it had used § 1881a surveillance in prosecutions against them. This development - years after the initiation of the surveillance program in question - appears to have created justiciable cases in which the surveillance programs can be challenged. See Charlie Savage, Warrantless Surveillance Continues to Cause Fallout, N.Y. TIMES, Nov. 20, 2013, http://www.nytimes.com/2013/11/21/us/warrantless-surveillance-continues-to- cause-fallout.html?-r=0.
6. Warth v. Seldin, 422 U.S. 490, 518 (1975).
7. See Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 152 (1970).
8. See Massachusetts v. EPA, 549 U.S. 497, 517 (2007)
9. ("At bottom, 'the gist of the question of standing' is whether petitioners have 'such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.'," (quoting Baker v. Carr, 369 U.S. 186, 204 (1962))).
10. See Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996) (explaining that standing doctrine "has a separation-of-powers component, which keeps courts within certain traditional bounds vis-à-vis the other branches, concrete adverseness or not,").
11. See Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009) ("In limiting the judicial power to 'Cases' and 'Controversies,' Article III of the Constitution restricts it to the traditional role of Anglo-American courts⋯.,")
12. Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., dissenting) (explaining that the federal courts are limited to "matters that were the traditional concern of the courts at Westminster,").
13. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
14. Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 103 n. 5 (1998)
15. Warth v. Seldin, 422 U.S. 490, 508 (1975)).
16. Laird v. Tatum, 408 U.S. 1, 13-14 (1972).
17. Allen v. Wright, 468 U.S. 737, 751 (1984)
18. Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 100 (1979)).
19. See, e.g., Heather Elliott, The Functions of Standing, 61 STA N. L. REV. 459, 501 (2008) (collecting sources)
20. Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies - And Their Connections to Substantive Rights, 92 VA. L. REV. 633, 664 (2006)
21. William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 231-32 (1988)
22. F. Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93 CORNELL L. REV. 275, 276 (2007)
23. Gene R. Nichol, Jr., Justice Scalia, Standing, and Public Law Litigation, 42 DUKE L.J. 1141, 1154-56 (1993)
24. Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N.C. L. REV. 1741, 1743 (1999)
25. Richard J. Pierce, Jr., Lujan v. Defenders of Wildlife: Standing as a Judicially Imposed Limit on Legislative Power, 42 DUKE L.J. 1170, 1200 (1993)
26. Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 189 (1992).
27. See Mark V. Tushnet, The Sociology of Article III: A Response to Professor Brilmayer, 93 HARV. L. REV. 1698, 1705-06 (1980) ("[M]embers of the Supreme Court themselves routinely accuse each other of distorting the doctrine for their own purposes.,").
28. Flast v. Cohen, 392 U.S. 83, 129 (1968) (Harlan, J., dissenting).
29. See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982).
30. This Article refers to current doctrine as being "adequacy based," but it might be more accurate to say that current doctrine is minimally or residually relative, in that it draws only a single relative distinction between those with and without adequate concreteness. Cf. Gene R. Nichol, Jr., Injury and the Disintegration of Article III, 74 CALIF. L. REV. 1915, 1927 (1986) (noting of the "actual injury requirement" that, "[o]n one level, it operates as something of a best-plaintiff rule,").
31. For the leading study in this vein, see Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case Or Controversy," Requirement, 93 HARV. L. REV. 297, 315-16 (1979) (arguing that courts relax the mootness and ripeness rules when "an issue [would] not otherwise be litigated,").
32. Other scholars have also suggested some attention to relativity. For example, relative considerations are prominent in debates over Establishment Clause standing. See infra section III.B. And Mark Tushnet has proposed that while standing should "be limited only if a candid assessment of the plaintiff's ability to present the case adequately," that "generous" rule, "should be coupled with a reluctance to find standing where plaintiffs more directly affected by the claimed illegality might realistically be expected to come forward." Mark V. Tushnet, The New Law of Standing: A Plea for Abandonment, 62 CORNELL L. REV. 663, 700 (1977) (emphases added)
33. accord Joseph J. Giunta, Comment, Standing, Separation of Powers, and the Demise of the Public Citizen, 24 AM. U. L. REV. 835, 849-50 (1975) ("[T]he presence or absence of a better plaintiff may be relevant to the issue of standing⋯.,").
34. E.g., Lee A. Albert, Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 YALE L.J. 425, 426 (1974) ("There are no better or worse plaintiffs, only those with or without a claim.,")
35. David P. Currie, Misunderstanding Standing, 1981 SUP. CT. REV. 41, 47
36. See, e.g., McConnell v. FEC, 540 U.S. 93, 227 (2003) ("We have noted that 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.," (internal quotation marks and alteration omitted)).
37. See, e.g., Elliott, supra note 20, at 474 ("As then-Judge Scalia noted, someone who undoubtedly has standing may well do a poor job of arguing his case, while a national public interest organization with no concrete stake may provide a court with the most helpful arguments.," (citing Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 891-92 (1983)))
38. see also Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 YALE L.J. 1363, 1385 (1973) ("[T]here is no reason to believe that litigants with a 'personal interest' will present constitutional issues any more sharply or ably than the Sierra Club or the ACLU.,").
39. See supra note 11; see also Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221 (1974) ("This personal stake is what the Court has consistently held enables a complainant authoritatively to present to a court a complete perspective upon the adverse consequences flowing from the specific set of facts undergirding his grievance.,")
40. Flast v. Cohen, 392 U.S. 83, 96-97 (1968)
41. United States v. Fruehauf, 365 U.S. 146, 157 (1961)). 36. U.S. CONST. art. III.
42. *22-41 (discussing "private rights," at common law); Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 MICH. L. REV. 689, 693 (2004) ("Rights at the core of [the private rights] category include an individual's common law rights in property and bodily integrity, as well as in enforcing contracts.,"); see also infra notes 40 and 43.
43. See generally RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 72-75 (6th ed. 2009) (describing both the "Dispute Resolution" and "Law Declaration," roles of the federal courts).
44. See id.; Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 COLUM. L. REV. 665, 669-72 (2012) (collecting sources).
45. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1282-83 (1976) (describing "the traditional conception of adjudication").
46. These plaintiffs are "traditional," with reference to the early twentieth century. See Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432, 1434 (1988) ("In the modern period⋯ judicial review of administrative action has been an outgrowth of a simple framework. If administrators intruded on interests protected at common law, judicial review was available⋯. If no common-law right were at stake, judicial protection was unavailable.,")
47. see also Ala. Power Co. v. Ickes, 302 U.S. 464, 479 (1938).
48. *141 ("Since the law is in England the supreme arbiter of every man's life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein.,"); 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 1 (O.W. Holmes, Jr. ed., 12th ed., Boston, Little, Brown & Co. 1873)
49. See, e.g., FALLON ET AL., supra note 38, at 74; Fletcher, supra note 20, at 225-28; Hessick, supra note 20, at 291; Amanda Leiter, Substance or Illusion? The Dangers of Imposing a Standing Threshold, 97 GEO. L.J. 391, 395-400 (2009)
50. Monaghan, supra note 39, at 672 (noting the "well known" story that "[i]n the twentieth century, the types of litigants who could gain access to the Article III courts were vastly expanded,"); Sunstein, supra note 40, at 1436-38. Compare Tenn. Elec. Power Co. v. Tenn. Valley Auth., 306 U.S. 118, 137 (1939)
51. Bond v. United States, 131 S. Ct. 2355, 2361-63 (2011).
52. E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992).
53. E.g., Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1142 (2013).
54. E.g., Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 592 (2007) (plurality opinion).
55. See Chayes, supra note 40, at 1282-84 (contrasting the "traditional conception of adjudication" with, "the dominating characteristic of modern federal litigation," where lawsuits "do not arise out of disputes between private parties about private rights" but instead involve "the vindication of constitutional or statutory policies,"); see also Susan Bandes, The Idea of a Case, 42 STA N. L. REV. 227, 279-83 (1990) (criticizing the common law "private rights," model as inconsistent with modern practice and values)
56. Owen M. Fiss, Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 29-30 (1979) (arguing that, at least in cases that aren't "purely private," "courts exist to give meaning to our public values, not to resolve disputes,")).
57. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S. Ct. 2743, 2754-55 (2010)
58. see also Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 73-74 (1978) (discussing harm of "uncertainty,").
59. See Sierra Club v. Morton, 405 U.S. 727, 734 (1972).
60. See Ne. Fla. Chapter, Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) ("[A] member of [a]⋯ group seeking to challenge [a legal] barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The 'injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.,")); see also infra note 130.
61. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995) (internal quotation marks omitted)
62. see also Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 280 n.14 (1978).
63. See Claire Finkelstein, Is Risk A Harm?, 151 U. PA. L. REV. 963, 966 (2003) (distinguishing "risk harm" from "ordinary, tangible harm,").
64. See, e.g., Natural Res. Def. Council v. EPA, 464 F.3d 1, 7 (D.C. Cir. 2006)
65. see also Public Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 513 F.3d 234, 237 (D.C. Cir. 2008) ("[T]his Court has not closed the door to all increased-risk-of-harm cases.,").
66. See Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 636 (2007) (Scalia, J., concurring) ("[O]nce a proper understanding of the relationship of standing to the separation of powers is brought to bear, Psychic Injury⋯ is revealed for what it is: a contradiction of the basic propositions that the function of the judicial power is, solely, to decide on the rights of individuals⋯.," (citations and internal quotation marks omitted))
67. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 107 (1998) (explaining that "psychic satisfaction is not an acceptable Article III remedy,").
68. Some important studies have defended standing rules for reasons equally compatible with adequate and relative standing. See generally Eugene Kontorovich, What Standing Is Good For, 93 VA. L. REV. 1663 (2007)
69. Maxwell L. Stearns, Standing and Social Choice: Historical Evidence, 144 U. PA. L. REV. 309 (1995).
70. E.g., Gene R. Nichol, Jr. Standing for Privilege: The Failure of Injury Analysis, 82 B.U. L. REV. 301, 309 (2002) ("Injury determinations have been marked by a breathtaking inconsistency.,"); See supra notes 21-23 and accompanying text.
71. See Daniel E. Ho & Erica L. Ross, Did Liberal Justices Invent the Standing Doctrine? An Empirical Study of the Evolution of Standing, 1921-2006, 62 STA N. L. REV. 591, 596 (2010)
72. See Flast v. Cohen, 392 U.S. 83, 105-06 (1968)
73. Kenneth Culp Davis, Standing: Taxpayers and Others, 35 U. CHI. L. REV. 601, 601 (1968)
74. Louis L. Jaffe, Standing to Secure Judicial Review: Private Actions, 75 HARV. L. REV. 255, 302 (1961).
75. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 489 (1982)
76. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974)
77. United States v. Richardson, 418 U.S. 166, 179-80 (1974)
78. Abram Chayes, Foreword: Public Law Litigation and the Burger Court, 96 HARV. L. REV. 4, 10, 16 (1982)
79. Warth v. Seldin, 422 U.S. 490, 518 (1975).
80. A traditional claimant raising a similar claim was already proceeding through the courts. see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 260-64 (1977).
81. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 102 (Phillips Bradley ed., Henry Reeve trans., Albert A. Knopf, Inc. 1945) (1835)
82. cf. Sierra Club v. Morton, 405 U.S. 727, 740 n.16 (1972) (discussing Tocqueville).
83. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.,").
84. See U.S. CONST. art. VI, cl. 3; see also Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 617 (2007) (Kennedy, J., concurring)
85. United States v. Richardson, 418 U.S. 166, 189 (1974) (Powell, J., concurring)
86. Mo., Kan. & Tex. Ry. Co. of Tex. v. May, 194 U.S. 267, 270 (1904)).
87. On this view, should standing still be enforced when - as Justice Scalia has alleged - the political branches are "abdicating," their duty to make constitutional determinations? See Stuart Taylor Jr., The Tipping Point, NAT 'L J., June 10, 2000, at 1810, 1811.
88. See generally ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962) (discussing the counter-majoritarian difficulty and the need for judicial restraint).
89. E.g., Warth v. Seldin, 422 U.S. 490, 498-99 (1975) (explaining that both constitutional and prudential standing are "founded in concern about the proper - and properly limited - role of the courts in a democratic society,")).
90. Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1441 (2011).
91. See, e.g., Ala. State Fed'n of Labor v. McAdory, 325 U.S. 450, 461 (1945) ("It has long been its considered practice not to decide abstract, hypothetical or contingent questions⋯ or to decide any constitutional question in advance of the necessity for its decision⋯." (emphasis added)) (citations omitted))
92. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring); FALLON ET AL., supra note 38, at 50-52.
93. *23).
94. Citizens United v. FEC, 558 U.S. 310, 375 (2010) (Roberts, C.J., concurring) ("Thus while it is true that '[i]f it is not necessary to decide more, it is necessary not to decide more,' sometimes it is necessary to decide more." (citation omitted)
95. PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment))). The Court has connected the Article III "controversy," requirement to both the norm of constitutional avoidance and the rule against overbroad holdings.
96. Liverpool, N.Y. & Phila. Steam-Ship Co. v. Comm'rs of Emigration, 113 U.S. 33, 39 (1885).
97. See John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 DUKE L.J. 1219, 1220 (1993) ("The need to resolve such an actual case or controversy provides the justification not only for judicial review over the popularly elected and accountable branches of the federal government, but also for the exercise of judicial power itself⋯," (footnote omitted)))
98. see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) ("Always we must balance 'the heavy obligation to exercise jurisdiction,' against the 'deeply rooted' commitment 'not to pass on questions of constitutionality' unless adjudication of the constitutional issue is necessary.," (citation omitted)).
99. Allen v. Wright, 468 U.S. 737, 752 (1984)
100. Chi. & Grand Trunk Ry. Co. v. Wellman, 143 U.S. 339, 345 (1892).
101. See, e.g., Warth v. Seldin, 422 U.S. 490, 500 (1975) (explaining that, without standing doctrine, courts might resolve important questions "even though judicial intervention may be unnecessary to protect individual rights,")
102. United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 90-91 (1947) ("Judicial exposition upon political proposals is permissible only when necessary to decide definite issues between litigants.,").
103. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (emphasis added) (internal quotation marks omitted).
104. Other justiciability principles may also reflect the principle of necessity. The "capable of repetition, yet evading review," exception to mootness supplies perhaps the best example: if all plaintiffs quickly lose their stake in seeking relief, then a plaintiff whose claim has become moot isn't actually (that is, in the fullness of time) any worse than other potential plaintiffs. See Sosna v. Iowa, 419 U.S. 393, 399-400 (1975)
105. see also Brilmayer, supra note 26 (making a similar point). Ripeness and finality rules may have a similar explanation, as there is no need to resolve an administrative challenge when the agency has yet to take final action. See Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803, 807-08 (2003) ("Ripeness is a justiciability doctrine designed 'to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements⋯.',"
106. Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967).
107. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217 (1974).
108. Diamond v. Charles, 476 U.S. 54, 62 (1986).
109. See R. L. Brilmayer, Judicial Review, Justiciability and the Limits of the Common Law Method, 57 B.U. L. REV. 807, 819-21, 827-30 (1977).
110. See supra notes 11 and 35. Cf. David M. Driesen, Standing for Nothing: The Paradox of Demanding Concrete Context for Formalist Adjudication, 89 CORNELL L. REV. 808, 815-26 (2004) (discussing the meaning of "concrete adverseness,").
111. E.g., Baker v. Carr, 369 U.S. 186, 204 (1962)
112. See Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996) (asserting that standing "keeps courts within certain traditional bounds vis-à-vis the other branches, concrete adverseness or not,")
113. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 486 (1982) (stating that concrete adverseness "is the anticipated consequence of proceedings commenced by one who has been injured in fact; it is not a permissible substitute for the showing of injury itself,").
114. See Brilmayer, supra note 26, at 309 ("[T]here are reasons to doubt whether self-appointed ideological plaintiffs should be presumed to be adequate representatives.,"); Sunstein, supra note 40, at 1462 ("[T]he requirement of injury in fact - rooted in the APA, not article III - promotes autonomy and self-determination on the part of litigants.,"); see also Am. Bottom Conservancy v. U.S. Army Corps of Eng'rs, 650 F.3d 652, 656 (7th Cir. 2011) (arguing that standing doctrine is needed in part "to ensure that the legal remedies of primary victims of wrongful conduct will not be usurped by persons trivially or not at all harmed by the wrong complained of,").
115. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990).
116. But see Daniel M. Hausman, The Impossibility of Interpersonal Utility Comparisons, 104 MIND 473, 474 (1995) ("[I]f a conception of well-being does not permit one to make interpersonal comparisons in an acceptable way, then that conception of well-being is itself unacceptable.,")
117. quoted and discussed in Matthew D. Adler & Eric A. Posner, Rethinking Cost-Benefit Analysis, 109 YALE L.J. 165, 206 (1999).
118. Cass R. Sunstein, Cognition and Cost-Benefit Analysis, 29 J. LEGAL STUD. 1059, 1077 (2000) ("[C]ost-benefit analysis⋯ is best taken as pragmatic instrument, agnostic on the deep issues⋯.,").
119. Cf. Jonathan R. Siegel, A Theory of Justiciability, 86 TEX. L. REV. 73, 135-36 (2007) (arguing that while standing doctrine is often counterproductive, "if A damages B's property in a car accident and B chooses to let the matter go, it seems clear that the law should not permit anyone else to sue A to collect B's damages, even if such a plaintiff were required to distribute the damages to B,").
120. Compare Flast v. Cohen, 392 U.S. 83, 105-06 (1968)
121. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 224 n.9 (1963). see also infra section III.C.
122. The Court makes similar points when criticizing irrational agency action. See, e.g., Judulang v. Holder, 132 S. Ct. 476, 485 (2011) (explaining that if an agency decided a legal question "by flipping a coin - heads [a claimant] may apply for relief, tails he may not - we would reverse the policy in an instant,").
123. Still, randomization may be underrated. See Adam M. Samaha, Randomization in Adjudication, 51 WM. & MARY L. REV. 1 (2009) (identifying virtues of randomized decision making).
124. This example is a variation of the fact pattern in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), discussed infra in section III.F.1.
125. This point also distinguishes Akins from the taxpayer case United States v. Richardson, which had denied standing to an individual whose "only injury alleged," was the mere denial of information. See United States v. Richardson, 418 U.S. 166, 169 (1974) ("The only injury alleged by respondent was that he 'cannot obtain a document that sets out the expenditures and receipts' of the CIA⋯.,").
126. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
127. Massachusetts v. EPA, 549 U.S. 497, 519-23 (2007).
128. Baker v. Carr, 369 U.S. 186, 205-08 (1962).
129. United States v. Hays, 515 U.S. 737, 745-46 (1995).
130. See Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 449 (1989) (holding that denial of access to records always "constitutes a sufficiently distinct injury to provide standing to sue,"). Cf. infra note 135.
131. See Newdow v. Roberts, 603 F.3d 1002, 1014 (D.C. Cir. 2010) (Kavanaugh, J., concurring) (discussing the Supreme Court's apparent - if implicit - recognition of standing in religious display cases).
132. See supra note 57; see also Heckler v. Mathews, 465 U.S. 728, 738-40 (1984) (holding that men had standing to challenge a gender-discriminatory law where only possible remedy was reduction of benefits awarded to women)).
133. Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000).
134. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 226-27 (1974) ("In some fashion, every provision of the Constitution was meant to serve the interests of all. Such a generalized interest, however, is too abstract to constitute a 'case or controversy' appropriate for judicial resolution.,").
135. Massachusetts v. EPA, 549 U.S. 497, 526 (2007).
136. Commentators have rationalized Massachusetts by injecting principles of federalism and state sovereignty into standing analysis, See, e.g., Calvin Massey, State Standing After Massachusetts v. EPA, 61 FLA. L. REV. 249, 252 (2009), but no special exception is required. Because global warming is gradual and diffuse, the Court correctly perceived that the parties with the most to lose are those with the largest affected landholdings - including coastal states. See 549 U.S. at 519 ("That Massachusetts does in fact own a great deal of the 'territory alleged to be affected' only reinforces the conclusion that its stake in the outcome of this case is sufficiently concrete to warrant the exercise of federal judicial power.,").
137. Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 449, 448 (1989).
138. But see Evan Tsen Lee & Josephine Mason Ellis, The Standing Doctrine's Dirty Little Secret, 107 NW. U. L. REV. 169, 172 (2012) ("A plaintiff may seek enforcement of a valid FOIA request without having to show any injury-in-fact at all.,").
139. See Sinkfield v. Kelley, 531 U.S. 28, 30 (2000) (denying standing to plaintiffs who "did not reside in the majority-minority district," even though "the racial composition of their own district might have been different had the legislature drawn the adjacent majority-minority district another way,"
140. United States v. Hays, 515 U.S. 737, 744-46 (1995).
141. But see Samuel Issacharoff & Pamela S. Karlan, Standing and Misunderstanding in Voting Rights Law, 111 HARV. L. REV. 2276, 2279 (1998) (arguing that "there is no coherent theory of injury that justifies the standing rule the Court has established,").
142. See Van Orden v. Perry, 545 U.S. 677 (2005) (allowing standing to pass sub silentio in a religious display case).
143. But see The Supreme Court, 2010 Term - Leading Cases, 125 HARV. L. REV. 172, 177-78 (2011) (arguing that implicit standing findings in religious display cases like Van Orden may be incompatible with Lujan)).
144. KERM, Inc. v. FCC, 353 F.3d 57, 61 (D.C. Cir. 2004) (discussing "competitor standing,").
145. The seminal competitor standing case features a prominent argument from relative standing. See FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 477 (1940) (finding standing conferred by statute because Congress "may have been of opinion that one likely to be financially injured by the issue of a license would be the only person having a sufficient interest to bring" the case and "[i]t is within the power of Congress to confer such standing,").
146. Despite this limiting language, leading commentators have read Sanders Bros. as authorizing pure public actions. See Louis L. Jaffe, Standing Again, 84 HARV. L. REV. 633, 635 (1971) (arguing that Sanders proves "that a case or controversy does not require a Hohfeldian plaintiff" since the plaintiff there "had no legal interest,")
147. Elizabeth Magill, Standing for the Public: A Lost History, 95 VA. L. REV. 1131, 1138-42 (2009).
148. See Heckler v. Mathews, 465 U.S. 728, 738-40 (1984) (finding standing where only possible remedy was reduction in benefits for women)
149. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 280 n. 14 (1978).
150. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191 (2000) ("Standing doctrine functions to ensure, among other things, that the scarce resources of the federal courts are devoted to those disputes in which the parties have a concrete stake.,").
151. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
152. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 42 (1976)
153. Consider the famous Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928), which is famous in part because it is so easy to "trace" the remarkable series of events that allegedly "caused," the plaintiff's injury.
154. Cf. Luke Meier, Using Tort Law to Understand the Causation Prong of Standing, 80 FORDHAM L. REV. 1241, 1252-53 (2011).
155. Professor Nash recognizes probability's fundamental importance to any reasonable evaluation of individual injury. See Jonathan Remy Nash, Standing's Expected Value, 111 MICH. L. REV. 1283 (2013).
156. But Nash concludes that any injury with a positive expected value, no matter how small, should confer standing. see also Bradford Mank, Standing and Statistical Persons: A Risk-Based Approach to Standing, 36 ECOLOGY L.Q. 665, 665 (2009) (proposing that "any individual should have standing to challenge government action that exposes her to an increased lifetime risk of death or serious injury that is one in one million or greater,").
157. See Hope M. Babcock, The Problem with Particularized Injury: The Disjuncture Between Broad-Based Environmental Harm and Standing Jurisprudence, 25 J. LAND USE & ENVTL. L. 1, 6 n. 28 (2009)
158. DONALD WORSTER, NATURE'S ECONOMY: A HISTORY OF ECOLOGICAL IDEAS 407 (Donald Worster & Alfred Crosby eds., Cambridge Univ. Press 2d ed. 1994) (1977)).
159. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973).
160. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 548 & n. 2 (2007) (Roberts, C.J., dissenting) ("Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint.").
161. E.g., Gianluca Bocchi & Mauro Ceruti, Solidarity or Barbarism: A Europe of Diversity Against Ethnic Cleansing, in 3 CONFLICT AND CONSCIOUSNESS 14 (Charles Webel ed., Alfonso Montuori trans., 1997) ("[T]he shots fired by Gavrilo Princip caused more than 8 million deaths, the result of World War I, which broke out a month later through events set in motion by the assassination.,").
162. See generally BARBARA W. T UCHMAN, THE GUNS OF AUGUST (Margaret MacMillan ed., 1962).
163. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
164. See Allen v. Wright, 468 U.S. 737, 753 n.19 (1984) (noting that "[t]he 'fairly traceable' and 'redressability' components of the constitutional standing inquiry were initially articulated by this Court as 'two facets of a single causation requirement',"
165. CHARLES ALAN WRIGHT, THE LAW O F FEDERAL COURTS § 13, at 68 n. 43 (4th ed. 1983)
166. Id. at 759 n.24 (noting a case in which "the 'redressability' analysis is identical to the 'fairly traceable' analysis," (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40-46 (1976).
167. See Massachusetts v. EPA, 549 U.S. 497, 544-45 (2007) (Roberts, C.J., dissenting) (criticizing the Court's redressability analysis because global warming is largely caused by foreign entities outside the Court's and the EPA's jurisdiction)
168. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103 (1998) (defining "redressability" as "a likelihood that the requested relief will redress the alleged injury,").
169. See, e.g., Jesse H. Choper, The Political Question Doctrine: Suggested Criteria, 54 DUKE L.J. 1457, 1470 (2005) ("There may be constitutional provisions for which the Court simply lacks the capacity to develop clear and coherent principles to govern litigants' conduct.,").
170. Cf. Linda Sandstrom Simard, Standing Alone: Do We Still Need the Political Question Doctrine?, 100 DICK. L. REV. 303, 333 (1996) ("By categorizing the political question attributes set out in Baker in terms of cognizability and redressability, the overlap between the political question doctrine and the modern standing doctrine becomes apparent.").
171. By contrast, a plaintiff who seeks compensation for litigation expenses never thereby obtains standing to seek a compensatory or injunctive remedy in the first instance. See Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 773 (2000)
172. Diamond v. Charles, 476 U.S. 54, 70-71 (1986) ("[T]he mere fact that continued adjudication would provide a remedy for an injury that is only a byproduct of the suit itself does not mean that the injury is cognizable under Art. III.")
173. Am. Soc'y for Prevention of Cruelty to Animals v. Feld Entm't, Inc., 659 F.3d 13, 25 (D.C. Cir. 2011) ("[D]iversion of resources to litigation or to investigation in anticipation of litigation is considered a 'self-inflicted' budgetary choice that cannot qualify as an injury in fact for purposes of standing.,").
174. Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009).
175. Stern v. Marshall, 131 S. Ct. 2594, 2609 (2011)
176. Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., dissenting).
177. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 21 (Max Farrand ed., rev. ed. 1966) (Resolution VI of the Virginia Plan).
178. See Woolhandler & Nelson, supra note 37, at 691 (arguing that history does not "defeat," standing doctrine, even if it also does not provide a clear originalist basis for it). Compare Raoul Berger, Standing to Sue in Public Actions: Is it a Constitutional Requirement?, 78 YALE L.J. 816, 837-40 (1969) (arguing that historical practice does not support an injury requirement)
179. Louis L. Jaffe, The Citizen As Litigant In Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968) (same)
180. Lee & Ellis, supra note 135, at 230-31, and Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STA N. L. REV. 1371 (1988) (arguing that historical practice does not support an injury requirement)
181. 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, 5 (2001) (concluding that "the personal stake requirement is constitutionally permissible,")
182. Bradley S. Clanton, Standing and the English Prerogative Writs: The Original Understanding, 63 BROOK. L. REV. 1001, 1043-45 (1997) (challenging Jaffe's and Berger's historical evidence).
183. See Note, Advisory Opinions and the Influence of the Supreme Court Over American Policy-making, 124 HARV. L. REV. 2064, 2067 & n. 20 (2011) (collecting sources and noting that "English judges had a longstanding practice of issuing advisory opinions upon the monarch's request,").
184. On the interpretation/construction distinction pervasive in "new originalist," scholarship, see generally JACK M. BALKIN, LIVING ORIGINALISM (2011)
185. Lawrence B. Solum, Semantic Originalism 2, 28-30 (Ill. Pub. Law & Legal Theory Research Papers Series, Paper No. 07-24, 2008).
186. The Supreme Court has said that Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792), "stands for the principle that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch.," Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995).
187. 3 THE CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 486-89 (Henry P. Johnston ed., New York, G. P. Putnam's Sons 1891)
188. 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1771 (Fred B. Rothman & Co. 1991) (1833)
189. (explaining that the Jay Letter prohibited "extrajudicial interpretations of law,"). But see Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 CORNELL L. REV. 393 (1996) (arguing that the Jay Court would have resolved the issue had the Executive brought formal suit). see also infra note 188.
190. See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 302 (2004) (plurality opinion)
191. Flast v. Cohen, 392 U.S. 83, 96 (1968)
192. United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89 n.19 (1947).
193. See David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543 (1985) (defending discretionary jurisdiction-declining doctrines).
194. Warth v. Seldin, 422 U.S. 490, 500 (1975)
195. see also Allen v. Wright, 468 U.S. 737, 751 (1984) ("Standing doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction⋯.,").
196. See, e.g., FEC v. Akins, 524 U.S. 11, 24 (1998) (collecting cases where the "abstract nature of the harm" precluded what would "amount to an advisory opinion,")
197. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982).
198. For a prominent preenactment challenge to the Act's constitutionality, see Randy Barnett, Nathaniel Stewart & Todd Gaziano, Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional, LEGAL MEMORANDUM NO. 49 (The Heritage Found., Washington, D.C.), Dec. 9, 2009, at 1, available at http://www.heritage.org/research/reports/2009/12/why-the-personal- mandate-to-buy-health-insurance-is-unprecedented-and-unconstitutional.
199. See Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979).
200. Raines v. Byrd, 521 U.S. 811, 820 (1997) (footnote omitted).
201. See WILLIAM R. CASTO, THE SUPREME COURT IN THE EARLY REPUBLIC: THE CHIEF JUSTICESHIPS OF JOHN JAY AND OLIVER ELLSWORTH 79 (1995) (arguing that the Jay Court's letter to Washington established that "the Court should not - as an exercise of institutional discretion - issue advisory opinions" (emphasis added).
202. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985)
203. Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 99-100 (1979)).
204. E.g., Warth v. Seldin, 422 U.S. 490, 499-500 (1975) (noting the prudential standing rule that a party "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties,")
205. United States v. Raines, 362 U.S. 17, 22 (1960) (noting that "a litigant may only assert his own constitutional rights or immunities,").
206. Powers v. Ohio, 499 U.S. 400, 410-11 (1991)
207. Singleton v. Wulff, 428 U.S. 106, 112 (1976).
208. Id. at 413 (quoting Singleton v. Wulff, 428 U.S. 106, 115 (1976).
209. 429 U.S. 190 (1976). Commentators have argued that Craig and like cases can and should be re-conceptualized as first-party cases. See generally, e.g., Henry P. Monaghan, Third Party Standing, 84 COLUM. L. REV. 277 (1984).
210. Sometimes directly regulated vendors aren't superior. For example, Bantam Books, Inc. v. Sullivan involved a regime that purported "only to regulate distribution [of books]," but the Court nonetheless allowed book publishers to raise a First Amendment claim. 372 U.S. 58, 64 n.6 (1963). As the Court explained, a book "distributor who is prevented from selling a few titles is not likely to sustain sufficient economic injury to induce him to seek judicial vindication of his rights," whereas the book's "publisher has the greater economic stake, because suppression of a particular book prevents him from recouping his investment in publishing it.," Id. (citing NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958)
211. 499 U.S. 400, 410-11 (1991) (affording a white defendant standing to assert black jurors' rights). The Court later arrived at an apparently inconsistent conclusion when extending Batson v. Kentucky, 476 U.S. 79 (1986)
212. the government standing to challenge peremptory strikes by the defense. See Georgia v. McCollum, 505 U.S. 42, 56 (1992) ("As the representative of all its citizens, the State is the logical and proper party to assert the invasion of the constitutional rights of the excluded jurors⋯.,"). On a relative approach, both rulings make sense for the same reason: the party entitled to a remedy had standing.
213. See Eric L. Muller, Solving the Batson Paradox: Harmless Error, Jury Representation, and the Sixth Amendment, 106 YALE L.J. 93, 122 (1996) ("[T]he Court could muster nothing more specific than this [in support of standing]: 'Racial discrimination in the selection of jurors casts doubt on the integrity of the judicial process,⋯ places the fairness of a criminal proceeding in doubt⋯ [and] invites cynicism respecting the jury's neutrality and its obligation to adhere to the law.'," (quoting Powers, 499 U.S. at 411-12))).
214. Such arguments do not normally demonstrate injury in fact. See Allen v. Wright, 468 U.S. 737, 751 (1984).
215. Id. at 459 (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring)).
216. Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977).
217. See United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 546 (1996) ("'[Individual participation' is not normally necessary when an association seeks prospective or injunctive relief for its members⋯.," (citing Hunt, 432 U.S. at 343).
218. The most foundational work is Henry P. Monaghan's Overbreadth, which contends that overbreadth is best viewed, not as an exception to the third-party rule, but rather as the recognition of a first-party claim against exposure to a substantively invalid rule. Henry Paul Monaghan, Overbreadth 1981 SUP. CT. REV. 1. For criticism of this view, see Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853, 871-75 (1991).
219. E.g., New York v. Ferber, 458 U.S. 747, 767 (1982) ("[A] person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.,").
220. See Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 AM. U. L. REV. 359, 366 (1998) (explaining that, in general, "federal courts reject overbreadth facial challenges under the rule barring so-called 'third party' standing,"); Monaghan, supra note 209, at 1 ("'[O]verbreadth' is generally understood to denote a conscious departure from conventional standing concepts in free-expression cases.,").
221. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973) (emphasis added)
222. Ferber, 458 U.S. at 768-69; Speiser v. Randall, 357 U.S. 513, 526 (1958) ("[W]here particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken factfinding - inherent in all litigation - will create the danger that the legitimate utterance will be penalized.,").
223. Bates v. State Bar of Ariz., 433 U.S. 350, 381 (1977) ("Since advertising is linked to commercial well-being, it seems unlikely that such speech is particularly susceptible to being crushed by overbroad regulation.,").
224. See David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190, 208-09 (1988).
225. Later decisions have controversially limited Flast's applicability. E.g., Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 589 (2007) (plurality opinion).
226. Bowen v. Kendrick, 487 U.S. 589, 618 (1988).
227. Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1443 (2011).
228. See id. at 1443 ("[T]he purpose of many governmental expenditures and tax benefits is 'to spur economic activity, which in turn increases government revenues.'" (quoting Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 344 (2006).
229. See Kenneth Culp Davis, Standing to Challenge Governmental Action, 39 MINN. L. REV. 353, 387 (1955) (noting that the General Motors Corporation's tax liability in the 1950s was such that the company had an approximately "two per cent stake in every federal expenditure,").
230. Crampton v. Zabriskie, 101 U.S. 601, 608-09 (1879).
231. But see Smith v. Jefferson Cnty. Bd. of Sch. Comm'rs, 641 F.3d 197, 221 (6th Cir. 2011) (en banc) (Sutton, J., concurring) (noting that, today, some metropolises have greater populations than many states).
232. Frothingham v. Mellon, 262 U.S. 447, 487 (1923).
233. Though Flast did not limit taxpayer standing to Establishment Clause cases, See infra note 237, later decisions have done so. See Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 609-10 (2007) (plurality opinion).
234. See, e.g., William P. Marshall & Gene R. Nichol, Not a Winn-Win: Misconstruing Standing and the Establishment Clause, 2011 SUP. CT. REV. 215, 252
235. ("Failing to grant standing to those asserting these injuries means core Establishment Clause guarantees will be violated without judicial redress.,"); Shapiro, supra note 178, at 585-86 ("Perhaps the Court [in Flast] was acknowledging a discretionary authority to accord taxpayer standing when the courts might otherwise be powerless to review the validity of certain legislative actions affecting important constitutional guarantees."); Tushnet, supra note 26, at 690-92; see also Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1451 (2011) (Kagan, J., dissenting) ("Sometimes, no one other than taxpayers has suffered the injury necessary to challenge government sponsorship of religion.,").
236. Oral Argument at 33:39, Flast v. Cohen, 392 U.S. 83 (1968) (No. 416), available at http://www.oyez.org/cases/1960-1969/1967/1967-416.
237. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 486-87 (1982) (denying standing where plaintiffs in Maryland and Virginia learned "through a news release," of an alleged Establishment Clause violation in Pennsylvania)).
238. Id. at 489; Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974) ("The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.,").
239. Cases where the Court arguably relied on this rule may sometimes reflect tacit merits decisions that the parties' dispute was constitutionally assigned to another branch. See 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 Congress⋯.,").
240. Flast's open-ended endorsement of taxpayer standing was not limited to Establishment Clause plaintiffs. As a result, Flast was originally recognized as a first step toward entirely overruling the bar on taxpayer standing - not just in Establishment Clause cases, but in all cases of constitutional right. See The Supreme Court, 2010 Term - Leading Cases, supra note 137, at 177 ("Flast ⋯ phrased its exception in broad terms, suggesting that the Court was embarking down a path toward eroding the Frothingham rule." (footnote omitted) (citing Kenneth Culp Davis, Standing: Taxpayers and Others, 35 U. CHI. L. REV. 601, 601 (1968).
241. Flast v. Cohen, 392 U.S. 83, 98 n.17 (1968).
242. See United States v. Richardson, 418 U.S. 166, 188 (1974) (Powell, J., concurring) ("Relaxation of standing requirements is directly related to the expansion of judicial power.,").
243. See Flast v. Cohen, 392 U.S. 83, 131-32 (1968) (Harlan, J., dissenting) ("Any hazards to the proper allocation of authority among the three branches of the Government would be substantially diminished if public actions had been pertinently authorized by Congress and the President." (emphasis added)). "[S]ubstantially," but perhaps not entirely. Id. at 132. See infra note 258 and accompanying text.
244. See FEC v. Akins, 524 U.S. 11, 23-24 (1998)
245. but see Lexmark Int'l, Inc. v. Static Control Components, Inc., No. 12-873, slip op. at 8 n.3 (U.S. Mar. 25, 2014).
246. See Muskrat v. United States, 219 U.S. 346, 362 (1911) (declining jurisdiction where Congress created a cause of action to challenge a federal statute); see also supra note 138 (discussing Sanders Bros. and statutory standing).
247. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992).
248. Lujan, 504 U.S. at 560; Cf. Judicial Watch, Inc. v. U.S. Senate, 432 F.3d 359, 363 (D.C. Cir. 2005) (Williams, J., concurring) (criticizing this aspect of Lujan).
249. Warth v. Seldin, 422 U.S. 490, 500 (1975) (internal quotation marks omitted)
250. Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982) (citing Warth, 422 U.S. at 500).
251. Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. PA. L. REV. 613, 616 (1999) ("[T]he Court appears to have held⋯ that Congress is permitted to grant standing to all or many citizens, even if they are seeking to redress a 'generalized grievance'⋯.,").
252. See, e.g., Raines v. Byrd, 521 U.S. 811, 813-14 (1997) (denying standing to four senators and two congressman who sued pursuant to a statutory cause of action purporting to authorize legislators to bring immediate challenges to the Line Item Veto Act)).
253. See Clinton v. City of New York, 524 U.S. 417, 421 (1998).
254. See Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (explaining that "injury to the United States" includes "injury to its sovereignty arising from violation of its laws,")
255. Cf. United States v. Raines, 362 U.S. 17, 27 (1960).
256. See Vt. Agency, 529 U.S. at 773; Cf. Clanton, supra note 170, at 1008 (drawing on the reassignment of governmental interests to private plaintiffs to rationalize historical practice with modern doctrine); infra section IV.B (discussing Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)).
257. See Evan Caminker, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341, 342 n.3 (1989) (observing that the First Congress authorized qui tam actions). Precisely because these categories of cases are so old and deeply ingrained, they could easily be viewed as traditional common law claims, such that standing for prosecutors and qui tam plaintiffs would not require recourse to relative standing. Cf. supra section I.A.
258. See, e.g., Edward A. Hartnett, The Standing of the United States: How Criminal Prosecutions Show That Standing Doctrine is Looking for Answers in All the Wrong Places, 97 MICH. L. REV. 2239, 2245 (1999) (outlining this problem and asserting that "no federal judge, if pressed, would seriously contend that Article III requires that the United States must suffer an injury in fact⋯ before litigation on its behalf can be brought in federal court,"); Sunstein, supra note 20, at 172-73.
259. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 107 (1998) ("[T]hat a wrongdoer gets his just deserts [sic], or that the Nation's laws are faithfully enforced, that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury.,")
260. Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973) ("[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.,")
261. Cf. Standefer v. United States, 447 U.S. 10, 25 (1980).
262. The government might lack a superior interest in demanding punitive incarceration in the rare case where a particular defendant, if left unpunished, would harm a specific individual. Without resolving whether private prosecution might then be constitutional, it is noteworthy that "in England, in the American Colonies, and in the United States, private persons regularly prosecuted criminal cases.," Steel Co., 523 U.S. at 127-28 (Stevens, J., concurring) (footnotes omitted) (collecting sources); accord Douglas Hay, Controlling the English Prosecutor, 21 OSGOODE HALL L.J. 165, 167-69 (1983).
263. In unusual contexts, private federal prosecution occurs even today. See Robertson v. United States ex rel. Watson, 560 U.S. 272, 273 (2010) (Roberts, C.J., dissenting from dismissal of certiorari).
264. Statutory qui tam actions have a long historical pedigree, even though "the common-law qui tam action gradually fell into disuse" starting in the fourteenth century. Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 775 (2000).
265. See Vt. Agency, 529 U.S. at 773 (finding standing where the government had assigned its proprietary interest to private parties). The Court's decision to condition qui tam standing on the government's assignment of a proprietary interest makes sense. Id. When the government suffers a financial loss, it is much like any other private party who comes to court looking for money. When a sovereign interest is at stake, by contrast, the government has a special interest in enforcing the law through criminal and other punitive sanctions. See supra section III.D.1; see also infra note 359 and accompanying text (discussing Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)).
266. Vt. Agency, 529 U.S. at 772; Alliance to End Repression v. City of Chicago, 820 F.2d 873, 876 (7th Cir. 1987) ("So a 'pure' wager, in which A bets B $100 that a court will say a particular thing about C's rights vis a vis [sic] D, is not justiciable.,").
267. Other cases hold that litigation expenses cannot justify standing, See supra note 160, and that there is no standing to ask that money awards go to third parties. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 106 (1998).
268. See William M. Landes & Richard A. Posner, The Economics of Anticipatory Adjudication, 23 J. LEGAL STUD. 683, 683-84 (1994).
269. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
270. See, e.g., F. Andrew Hessick, Probabilistic Standing, 106 NW. U. L. REV. 55, 101 (2012) ("Any potential threat of injury that the courts can remedy creates a justiciable controversy and thus is sufficient to support Article III standing."). Hessick proposed a multifactored inquiry considering, among other things, whether the plaintiff's injury is "significant.," See id. at 91-92; see also supra note 147.
271. Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990).
272. Before Whitmore, the Court did not demand imminence per se, but rather asked the more overtly relativistic question whether an alleged injury was "sufficiently imminent to satisfy the jurisdictional requirements of the federal courts.," O'Shea v. Littleton, 414 U.S. 488, 498 (1974)
273. Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 99 (1979)
274. See, e.g., Pamela Karlan, The Paradoxical Structure of Constitutional Litigation, 75 FORDHAM L. REV. 1913, 1917 (2007)
275. See Massachusetts v. EPA, 549 U.S. 497, 519 (2007)
276. Natural Res. Def. Council v. EPA, 464 F.3d 1, 6 (D.C. Cir. 2006) (finding standing based on the increased risk incurred by a population).
277. See Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279, 1295 (D.C. Cir. 2007) ("[T]his Court has not closed the door to all increased-risk-of-harm cases.,").
278. E.g., Fla. State Conf. of the NAACP v. Browning, 522 F.3d 1153, 1160 (11th Cir. 2008)
279. Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 513 F.3d 234, 237-38 (D.C. Cir. 2008)
280. Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992)
281. Sierra Club v. Morton, 405 U.S. 727, 735 (1972).
282. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997)). Again, the main text brackets questions of ripeness. See supra note 294.
283. See Lewis v. Casey, 518 U.S. 343, 357 (1996) ("That a suit may be a class action⋯ adds nothing to the question of standing, for even named plaintiffs who represent a class must allege and show that they personally have been injured⋯.," (internal quotation marks omitted).
284. See, e.g., Robert Barnes, At Supreme Court, Challengers to Wiretap Law Say Its Secrecy Creates a Catch-22, WASH. POST (Oct. 29, 2012), http://www.washingtonpost.com/politics/decision2012/at-supreme-court- challengers-to-wiretap-law-say-its-secrecy-creates-a-catch-22/2012/10/29/ 95847f38-21dd-11e2-8448-81b1ce7d6978-story.html.
285. Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1441-42 (2011)
286. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217 (1974)) (internal quotation marks omitted).
287. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1003 (N.D. Cal. 2010).
288. Perry v. Brown, 671 F.3d 1052, 1075 (9th Cir. 2012)
289. vacated sub nom., Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).
290. See Lyle Denniston, "Proposition 8," Issue Now Ready, SCOTUSBLOG (Aug. 3, 2013, 10:20 PM), http://www.scotusblog.com/?p=168146.