Standing in Law Equity

v6n1.book Page 17 Wednesday, October 9, 2002 11:47 PM Standing in Law Equity A Defense of Citizen and Taxpayer Suits Richard A. Epstein hither standing? Few provisions power in Article III. in the United States Constitution From these institutional concerns Justice W have generated more heat and less O’Connor in Allen v. Wright drew these strong light than Article III, section 2, which inferences, with both prudential and constitu- speciÕes the scope of the federal judicial tional signiÕcance: power: “The judicial Power shall extend to all Standing doctrine embraces several judicially Cases, in law and Equity, arising under this self-imposed limits on the exercise of federal Constitution, the United States, and Treaties jurisdiction, such as the general prohibition Made, or which shall be made under their on a litigant’s raising another person’s legal Authority.” The canonical view holds that rights, the rule barring adjudication of these words restrict the power of federal generalized grievances more appropriately addressed in the representative branches, and courts to decide disputes (to use a neutral the requirement that a plaintiÖ’s complaint word) between parties for two reasons. First, fall within the zone of interests protected by the words “cases” and “controversies” are said the law invoked. The requirement of to embed the notion of “standing” into the standing, however, has a core component scope of the federal judicial power, even derived directly from the Constitution. A though that term appears nowhere in the text plaintiÖ must allege a personal injury fairly traceable to the defendant’s allegedly unlawful of Article III itself. Second, the proper inter- conduct and likely to be redressed by the pretation of the standing requirement in turn requested relief.1 respects the separation of powers that demar- cates the legislative power in Article I, the That redressable injury, moreover, must be executive power in Article II, and the judicial “distinct and palpable,” as opposed to Richard Epstein is James Parker Hall Distinguished Service Professor of Law at the University of Chicago and Peter and Kirsten Bedford Senior Fellow at the Hoover Institution. 1 Allen v. Wright, 468 U.S. 737, 751 (1984) (citations omitted). 17 v6n1.book Page 18 Wednesday, October 9, 2002 11:47 PM Richard A. Epstein “abstract” or “conjectural” or “hypothetical.”2 this article explains, however, the Supreme In essence there is a requirement that the Court has in its standing requirements defendant’s conduct be the cause of a dis- articulated only a test for cases in law, but tinct injury to the plaintiÖ not shared by not for those in equity. Consistent with this other individuals for which the legal system hypothesis, the historical requirements for can provide an appropriate remedy. equity cases often diverged from those for The thesis of this article is that the conven- cases in law. The requirement of discrete tional account of standing is wholly errone- harm applies only to cases in law. Obviously ous.3 The words “cases” and “controversies” do many equity cases also involve discrete not impose any limitation on the judicial harms, but for many cases in equity the power of the federal courts above and beyond governing principle was exactly the opposite. those associated with the prohibition against The plaintiÖ could bring an action on behalf advisory opinions. From the earliest times, the of a class of individuals only if they were Supreme Court, even on request, refused to similarly situated with him. The success of oÖer its advice to the President or one of his these amalgamations depended on the plain- agents on the constitutionality of some pro- tiÖ’s interest being indistinguishable from those posed legislative or executive decision. This whom he sought to represent. Particularized practice rests on the simple observation that it injury at equity was a disqualiÕcation, not a would be unwise for the judges to compromise requirement for these class-like suits. their judicial independence by giving advice on Once the relationship between legal and matters that might come before them in their equitable cases is understood, it follows that judicial capacity.4 the concept of standing, while vital to civil lit- This prohibition against advisory opinions igation, has no connection to any distinctive Ôows easily from the basic text. The minimum constitutional limitation of the use of federal – indeed, only – requirement for a case or con- judicial power. Rather the principle arises troversy is two parties with adverse interests. solely in response to one simple and sensible The advisory opinion typically has but a single requirement of judicial administration: Do party who works outside the normal judicial not allow actions to be brought by remote path. The same cannot be said, however, of and distant plaintiÖs, of whom there may be the standing gloss on Article III, which seeks many, when a single plaintiÖ with a distinc- to partition lawsuits between adverse parties tive and substantial interest is able to sue in into those that count as cases or controversies his own right. Rightly understood, standing and those that do not. As a textual matter, this has nothing to do with causation or redress- dodge seems precluded by the phrase “all ability under Article III. Parties denied cases, in law and equity” arising under the standing have suÖered harm caused by the Constitution, the Laws, and Treaties of the defendant’s action. They are precluded from United States. The term “all” has to be read as suing solely because other individuals with a term of inclusion, not one of limitation. larger injuries can imperfectly vindicate their Most critically, the reference to cases cov- interests. On this view, taxpayer and citizen ers both cases in law and cases in equity. As suits, now routinely barred in federal court, 2Id. 3 For a longer and more detailed defense of this position, see Richard A. Epstein, Standing and Spending – The Role of Legal and Equitable Principles, 4 Chapman L. Rev. 1 (2001). 4 See, for the materials, P. Bator, P. Mishkin, D. Shapiro H. Wechsler, Hart Wechsler’s The Federal Courts and the Federal System 65-66 (2d ed. 1973). 18 6 Green Bag 2d 17 v6n1.book Page 19 Wednesday, October 9, 2002 11:47 PM Standing in Law Equity should be routinely allowed as cases in equity Nor, as a moment’s reÔection reveals, is the under Article III. law of standing crystal clear about C’s posi- In order to establish these claims, the tion. Here it is tempting to say that since C remainder of this article is divided into four does not own the dog, she is in no position to parts. Part I explores the role of standing in sue for its loss. The idea of standing becomes cases in law. Part II discusses the very diÖerent closely entwined with the protection of prop- logic of standing in equity. Part III then erty interests. But it hardly follows that Chas explores the misguided rationales oÖered for not suÖered any harm because she lacks an the standing requirements in Justice Suther- ownership interest. C could be B’s next-door land’s watershed opinion in Massachusetts v. neighbor who plays with the dog on a regular Mellon and Frothingham v. Mellon.5 Part IV then basis, and is shattered by its death. No theory explains why many cases that have dismissed of proximate causation makes that damage actions for want of standing were correct for a too remote.6 The sequence of harm is “direct” diÖerent reason: courts in equity, in the exer- because no act of God or deliberate action of cise of their sound discretion, should have some third party severs the causal connec- denied relief unless other necessary or indis- tion. The harm is, if this matters, so routine pensable parties were joined to the case as that it is impossible to deny that such collat- defendants. eral damages are foreseeable to the reasonable person. I. Standing in Law Causation then does not decide the outcome in this case. Rather, a specialized rule Start with the simplest of cases. A kills B’s of standing is invoked out of the recognition dog. The normal response to this situation is that each owner could have many neighbors. that B, not C some stranger, has the sole right Each of these more numerous neighbors has to sue for the loss under the substantive law. a smaller stake on the outcome of the case That right to sue makes it easy to say that B than the owner. It is therefore better to has standing to sue as well. But it would still ignore these losses in order to simplify the be a mistake to conÔate the idea of standing legal system by channeling the rights of with the view that B has a valid cause of action through one party. So long as the action. Suppose the jurisdiction requires B to owner is allowed to sue, others receive the prove negligence in order to recover for the indirect beneÕts of deterrence before the loss, loss of his dog. B still has standing to bring a even if they do not get any direct compensa- strict liability cause of action, even though he tion after the fact. The standing requirement will be met with a successful demurrer to his reÔects the implicit tradeoÖ that the sharp claim. Likewise, B has standing to sue X, even increase in suits creates a huge administra- if she had nothing to do with the death of B’s tive nightmare for little improvement in dog. Standing never turns on the validity of marginal deterrence.

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