Justiciability: Standing and
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The issue of whether a litigant has standing to make a legal
claim in a court is critical to whether he may obtain justice and enforce a
law, especially a constitution. In the U.S., there has been a tendency for
court practice to reduce standing, making it more difficult for persons to
challenge unconstitutional practices. This is a fairly recent development.
Until Frothingham v. Mellon, 262 U.S. 447 (1923) the prevailing doctrine in the
federal courts was that any person had not only the right but the duty to seek redress
for violations of a "public right", without having to have suffered a personal injury.
Following the lead of the federal courts, the state courts have adopted a similar doctrine,
conveniently ignoring the alternatives of injunctive, declarative, and quo warranto relief.
A closely related issue is redressability, and courts have
avoided granting standing or offering relief in cases in which they held they
lack the power to grant effective relief, sometimes in cases in which only
declaratory relief was sought.
It is important to understand that in the Founding Era it was presumed
that any person could litigate a public right, and the Constitution was
designed with this justiciability in mind. If there is no right without a
remedy, then dismissal of pleadings for lack of "standing", or
"redressability", or "ripeness", effectively removes constitutional rights by
removing their remedies.
Metaphor of Standing and the Problem of Self-Governance, by Steven L.
Winter, 40 Stan. L. Rev. 1371, July, 1988.
Spending — The Role of Legal and Equitable Principles, by Richard A.
Epstein, Chapman L.R. 4:1 Spring 2001.
Redressing the Law of Redressability, by Harold J. Krent, 12 Duke Envtl. L.
& Pol'y F. 85 (2001).
Justice Scalia Took History and the Rule of Law Seriously?, by Steven L.
Winter, 12 Duke Envtl. L. & Pol'y F. 85 (2001).
From Lujan to
Laidlaw: A Preliminary Model of Environmental Standing, by Maxwell L.
Stearns, 12 Duke Envtl. L. & Pol'y F. 85 (2001).
Its Last Legs: Bennett v. Spear and the Past and Future of Standing in
Environmental Cases, by Sam Kalen, Florida State University Journal of Land
Use & Environmental Law, 1997.
Let's Revive Private Prosecutions, by Jon
Roland, 1996 — Denial of standing for private criminal prosecutions has
thwarted a critical means to fight public corruption.
Functional Understanding of Standing, by Vikramaditya S. Khanna, Discussion
Paper No. 355, Harvard Law School, 03/2002.
Does History Defeat Standing Doctrine?, by Anne Woolhandler & Caleb Nelson, Mich. L. Rev. (2004). Argues it does not, but glosses over the prerogative writs.