University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 144 DECEMBER 1995 No. 2 ARTICLES STANDING AND SOCIAL CHOICE: HISTORICAL EVIDENCE MAXWELL L. STEARNSt TABLE OF CONTENTS INTRODUCTION .................................. 310 I. OVERVIEW: THE SOCIAL CHOICE THEORY OF STANDING .. 313 A. ConstitutionalLaw Versus ConstitutionalProcess ...... 313 t Associate Professor, George Mason University School of Law. B.A. 1983, University of Pennsylvania; J.D. 1987, University of Virginia School of Law. I would like to thank the following for their helpful comments and suggestions: Jim Chen, Henry Manne,John Rogers, Warren Schwartz, Linda Schwartzstein, and David Skeel. I also wish to thank the GMUSL library staff for their assistance in helping to track down hard-to-find source materials, and Melissa Austin, William Crowley, and Michael DiLauro for their research assistance. In addition, I would like to acknowledge the generous funding provided through the Law and Economics Center of the George Mason University School of Law. Finally, I would like to thank the editors of the CaliforniaLaw Review and the University of PennsylvaniaLaw Review for their fine work and their cooperative efforts on this two-article project. (309) 310 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 144: 309 B. Cyclical Preferences Within a Single Case: Kassel v. Consolidated Freightways ................ 320 C. Cyclical Preferences over Time and Across Cases: Seattle and Crawford .......................... 323 1. Agenda Control: The Power of Certiorari and Intra- Versus Inter-Circuit Stare Decisis .... 327 2. Arrow's Theorem Revisited: The Axiom, the Corollary, and Standing's Fairness Foundation 330 3. Standing Between Litigation and Legislation .... 338 D. Informal Accommodations and Formal Rules .......... 340 II. STANDING IN HISTORICAL CONTEXT ................. 348 A. The Burger and Rehnquist Courts: A Study in Multipeaked Preferences ....................... 349 B. Modern Standing: Evolution and Doctrine .......... 385 1. Pre-Administrative Procedure Act Standing ..... 393 2. The Adoption and Interpretation of the APA . .. 400 III. STANDING IN THE BURGER AND REHNQUIST COURTS ..... 404 A. No Right to Enforce the Rights of Others ............. 410 B. No Right to Prevent Diffuse Harms .................. 432 C. No Right to an UndistortedMarket ................. 436 D. CongressionalGrants of Standing Revisited. Lujan v. Defenders of Wildlife .................. 449 CONCLUSION .................................... 459 INTRODUCTION The true test of any proposed model is neither its complexity nor its novelty. It is, instead, whether the model explains more data than the one that it is intended to supersede. The easiest way to criticize a model, including one built upon economic analysis, is to identify a point of reference, or datum, that the model fails to explain. The more difficult-and more useful-way to challenge a model, however, is to offer up an alternative that explains all the data that the prior model explains, plus one. Indeed, any scientific theory, including one based upon economic analysis, is valid only if it is falsifiable.1 While it is invariably difficult to falsify any theory ISee KARL R. POPPER, CONJECTURES AND REFUTATIONS: THE GROWTH OF SCIENTIFIC KNOWLEDGE 37 (5th ed. 1989) ("[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability."); see also 2 THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 66-91 (2d ed. 1970) (stating that inexplicable data create a crisis for a scientific theory and establish the need to devise new paradigms that account for that data); infra note 72. STANDING AND SOCIAL CHOICE grounded in a social science, perhaps the best we can do is to embrace a credible theory-one that appeals to our intuition-until an alternative credible theory that accounts for at least one more datum is offered. The lawyer faces a similar task. The effective lawyer learns to blend the image that affords her client relief with a larger and more compelling jurisprudential image composed of more points of reference-or dots-than that offered by her opponent. She does so by demonstrating that if the court grants her client relief, the picture that she has painted will remain essentially unchanged or, perhaps, even that its most important features will be sharpened. The ineffective lawyer, rather than offering up a new, and hopefully better, picture, simply tries to convince the decisionmaker that the existing picture is wrong. Most scholars who have considered the Supreme Court's standing doctrine have tried to demonstrate that the picture-at least as painted by the Supreme Court-is wrong. In this two-article series, I hope to demonstrate that the social choice explanation of standing I offer accounts for more standing and nonstanding case law, and for more of the history surrounding standing, than do prior explanations. In Standing Back from the Forest: Justiciability and Social Choice,2 I set out the theoretic framework, parts of which I will further develop here, and in this Article, I will present comprehensive empirical support to demon- strate that the social choice theory of standing meets the stringent test set out above. Together, in these articles, I hope to demon- strate that the social choice model I offer better explains three critical sets of data for assessing standing than does any prior model. In the prior article, I explained how standing fits within a larger jurisprudential framework and why standing is necessarily distinct from associated justiciability doctrines and from the cause of action inquiry.' In this Article, I further demonstrate that the social choice theory of standing better explains, first, the anomalous historical context in which the modern standing doctrine emerged; and second, and perhaps most importantly, the standing cases themselves. Without understating the difficulty of the assigned task, I also hope to do more. I hope to demonstrate in these articles that standing serves a critical, if rarely understood, purpose in furthering 2 Maxwell L. Stearns, StandingBackfrom the Forest: Justiciabilityand Social Choice, 83 CAL. L. REV. (forthcoming Dec. 1995). Due to the simultaneous publication of these articles, cross-references will be to parts rather than to pages. ' See id. part II.B. 312 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 144: 309 the separation-of-powers principles upon which our system of government ultimately rests. The task before us then is, in a sense, as lawyerly as it is academic. Scholarship explaining that the Supreme Court's standing picture is wrong is abundant. Some of it has been written by now-sitting Supreme Court justices.' In this Article, I will not try to demonstrate what is wrong with this picture;' instead, using social choice theory, I will try to offer up a better picture, one that encompasses more data than has been captured in prior snapshots. If I succeed, I will argue that it is because I have taken a sufficient number of steps back, enough to embrace within my field of vision the implications of the theory of social choice for standing. Social choice is used here as a positive, rather than normative, tool. But the analysis has significant normative implications for the constitu- tional separation of powers between the Supreme Court-and the 6 federal judiciary generally-and Congress. In Part I, I provide an overview of the social choice literature and framework as it relates to standing.7 Part II will place standing in its historical context. In that Part, I will use the social choice framework developed in Part I to demonstrate that, in contrast with prior relevant Supreme Courts, the Burger and Rehnquist Courts 8 were particularly prone to possessing multipeaked preferences. I will then explain how and why the Court superimposed its three- prong standing test, initially created in the context of interpreting 4 See STEPHEN G. BREYER & RICHARD B. STEWART, ADMINISTRATIVE LAW AND REGULATORY POLICY 1094 (2d ed. 1985) (positing that, in cases involving reliance upon a federal statute, the standing inquiry is inseparable from a determination on the merits, a position not taken in the third edition of the casebook); Antonin Scalia, The Doctrineof Standing as an EssentialElement of the Separationof Powers, 17 SUFFOLK U. L. REV. 881, 882 (1983) (arguing that the constitutional foundations of standing rest in part on the desire to insulate the executive branch fromjudicial interference). ' While I will criticize particular applications of standing, see infra part III.D (dis- cussing Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)), 1 will argue that particu- lar misuses do not undermine the critical functions that the standing doctrine serves. 6 The model is set out in detail in the predecessor article. See Stearns, supra note 2. Familiar readers can skip ahead to Part II of this Article, which will begin the historical analysis of the Burger and Rehnquist Courts. Unfamiliar readers are invited to read Part I, which will summarize the essential argument, and to refer to the prior article, which is cross-referenced throughout, for greater detail. " While Part I will largely summarize my prior work, it will also offer important new insights on the difference between constitutional law and constitutional process, which help to explain the separation-of-powers underpinnings of the modern standing formulation. See infra part I.A. ' Multipeakedness is defined, see infra part I.A, and illustrated visually,