40 Stan. L. Rev. 1371, *
Copyright © The Board of Trustees of
Leland Stanford Junior University, 1988.
Stanford Law Review
July, 1988
40 Stan. L. Rev. 1371
LENGTH: 102273 words
ARTICLE: The Metaphor of Standing and the Problem of Self-Governance.
Steven L. Winter *
Copyright © 1987 by Steven Winter.
... [C]onstitutional standing [is] ... a word game played by secret rules.... Characterized neither by the private rights model of the seven common law forms of action nor by the "injury-in-fact" paradigm of modern standing doctrine, these matters took forms astonishingly similar to the "standingless" public action or "private attorney general" model that modern standing law is designed to thwart.... Adjudicatory models premised on a part-whole schema, like mandamus, are ultimately crowded out of our concept of justiciable controversies.... Procedurally, the models of access for raising claims of public right allowed individuals to command the attention of the law, as in the private rights model.... The Frothingham Court began its analysis with a discussion of nonconstitutional doctrines of equity, proceeded to reason from the constituent model in a way that shows clear prototype effects, then rejected the intermediate status of the public rights model, and finally raised constitutional considerations that helped lead to a modern conception of standing.... For over a hundred years, the metaphor of "standing" was shorthand for the question of whether a plaintiff had asserted claims that a court of equity would enforce....
But the greatest thing by far is to be a master of the metaphor. n1
[*1372] I. THE QUEST FOR COHERENCE
[C]onstitutional standing [is] ... a word game played by secret rules. n2
"Come, Watson, come!" he cried. "The game is afoot." n3
It is almost de rigueur for articles on standing to quote Professor Freund's testimony to Congress that the concept of standing is "among the most amorphous in the entire domain of public law." n4 One of the traditional criticisms of standing law is that it is confusing and seemingly incoherent. Even the staunchest judicial advocates of the doctrine readily admit as much: "We need not mince words when we say that the concept of 'Art. III standing' has not been defined with complete consistency...." n5
Nevertheless, the courts treat standing as a "bedrock requirement" delimiting the scope of the judicial process. n6 It is generally accepted black letter law that the "case or controversy" requirement of article III means that a party who invokes the court's authority must show personal injury or "injury-in-fact." n7 The Burger Court has expanded the [*1373] "irreducible minimum" n8 to include the requirements that the plaintiff also show that the injury was caused by the defendant's allegedly illegal conduct and that the injury is one that can be redressed by the court's decision. n9 The net effect has been increasingly to restrict citizens' claims against their government. The Court has insisted on these minima with an amazing degree of orthodoxy: "Any other conclusion," the Court has warned, "would mean that the Founding Fathers intended to set up something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts." n10
Despite the purported constitutional warrant and the seeming clarity of the new black letter, standing law remains largely intractable. We have traditionally bridged the gaps in one of two ways. The traditionalists have attempted to harmonize the cases in terms of a coherent doctrine of standing n11 or to elaborate a coherent doctrine in place of standing. n12 Others have acknowledged openly the doctrinal and conceptual inconsistencies of the cases and accounted for them in either a Realist or post-Realist manner. Commentators in this group have concluded that the doctrine of standing is either a judicial mask for the exercise of prudence to avoid decisionmaking n13 or a sophisticated manipulation for the sub rosa decision of cases on their merits. n14
[*1374] The purpose of this article is to suggest an alternative vision. Its modus operandi is to employ recent scholarship on human cognition to map the underlying conceptual structure of standing law and, thus, to provide a better understanding of its incoherences. Implicit in this approach is the assertion that concepts do matter: that one cannot account for standing doctrine simply in terms of instrumental manipulation. Rather, the underlying concepts frame and constrain the instrumentalist choices. The basic tools, which I explain in Section II and employ throughout, are the concepts of cognitive models and metaphors.
Part of this endeavor will involve a challenge to the historical assumption that the Constitution speaks to the question ordinarily thought to be comprehended within the rubric of standing. Rather, a painstaking search of the historical material demonstrates that — for the first 150 years of the Republic — the Framers, the first Congresses, and the Court were oblivious to the modern conception either that standing is a component of the constitutional phrase "cases or controversies" or that it is a prerequisite for seeking governmental compliance with the law. I will show that the modern doctrine of standing is a distinctly twentieth century product that was fashioned out of other doctrinal materials largely through the conscious efforts of Justices Brandeis and Frankfurter. I will use the materials on models and metaphors to describe how this shaping was effectuated.
I am not so heretical as to suggest that there is no such thing as an article III "case or controversy" requirement that limits the judicial power to actual disputes. But a fuller account of our history shows that article III was not limited to the kinds of private disputes characterized by standing. I argue that there are serious negative consequences to the idea that the legal system is or should be circumscribed by such a concept. This article seeks instead a historically more accurate and democratically more meaningful approach to the uses of adjudication in a self-governing society.
A recent case, City of Los Angeles v. Lyons, n15 highlights the dysfunctional aspects of current standing doctrine that justify this endeavor. Adolph [*1375] Lyons was stopped for a traffic violation by Los Angeles police officers. He was subjected to a restraining chokehold and severely injured. He claimed that the police were employing such chokeholds routinely, even though they were not threatened with the use of deadly force by the victim. The record demonstrated that the chokeholds were often fatal.
The Supreme Court held that Mr. Lyons did not have standing to obtain an injunction barring the practice. In the majority's view, it was entirely speculative that Mr. Lyons would ever again be subjected to this potentially fatal practice. n16 The four dissenters complained that: "The court's decision removes an entire class of constitutional violations from the equitable powers of a federal court.... The federal judicial power is now limited to levying a toll for such a systematic constitutional violation." n17
On one level, Lyons represents a jurisprudential dispute between the majority and the dissent over the relative efficacy of retrospective damage remedies and prospective injunctive relief to deter constitutional violations. On another level, this case concerns a related dispute about the role of federal courts in our system. But there was an underlying reality: Human lives were at stake. Mr. Lyons obtained a preliminary injunction against the chokehold practice; both the court of appeals and the Supreme Court issued a stay of that order while the appeal was pending. Six additional people were choked to death by Los Angeles police while the courts determined that no one had standing to stop the practice. n18 Yet, two years later when the Court considered the same substantive constitutional theory in a related factual context, it held that it was unconstitutional for the police to use deadly force against nondangerous suspects. This holding was precisely the same as that sought by Mr. Lyons on the merits of his case. n19
There are many other examples of dysfunctionality; I will discuss them in later sections. At this point, it may be more helpful to describe some of the problems of standing law that I hope to illuminate.
1. The historical conundrum.
The notion that standing is a bedrock requirement of constitutional law has a surprisingly short history. Frothingham v. Mellon, n20 which rejected [*1376] a taxpayer suit to enjoin a federal spending program, is generally thought of as the first modern standing case. n21 In fact, it is not. Fairchild v. Hughes, n22 decided a year before Frothingham and authored by Justice Brandeis, was the first case to reject a taxpayer suit because the "[p]laintiff's alleged interest in the question submitted is not such as to afford a basis for this proceeding." n23 The Frothingham Court reached its conclusion that Ms. Frothingham could not sue without citing or identifying any precedent either for that conclusion or the premises it offered in support of that conclusion. n24
Perhaps more surprising, Frothingham was preceded by three federal and two state taxpayer actions that the Court adjudicated on the merits. n25 Moreover, as late as 1935, neither Professors Frankfurter nor Hart discussed Frothingham, Fairchild, or the concept of standing in their writings on article III justiciability limits on federal courts. n26 All of this [*1377] is unusual to say the least. One legitimately may wonder how a constitutional doctrine now said to inhere in article III's "case or controversy" language could be so late in making an appearance, do so with so skimpy a pedigree, and take so long to be recognized even by the primary academic expositors of the law of federal courts.
The traditional answer places heavy emphasis on the function of the common law writ system to do the work now done by the concept of standing. n27 According to this analysis, the concept of standing could only arise after the breakdown of the writ system and of common law pleading. Standing then developed as an elaboration of the essence of the private causes of action previously embodied in the writs. n28 As such, the modern concept of standing, with its focus on injury-in-fact, is thought to be only the preservation of the private rights model n29 of adjudication known to the Framers.
The traditional account is, however, inconsistent with the historical data. It cannot account for the five taxpayer actions that preceded Frothingham and Fairchild. n30 Moreover, it ignores the established practice in state courts, throughout the nineteenth century, that provided for public rights suits brought by plaintiffs who had no personal interest or injury-in-fact. n31 Finally, it is disproved by the fact that the Supreme Court, in 1875, specifically approved of this public rights [*1378] practice in a federal case without any constitutional objection. n32 I expand and develop this history in Section III; I then chart and attempt to explain its demise in Section IV.
2. The terminological conundrum.
The term "standing" does not appear either in Frothingham or in Fairchild. Consistent with the traditional historical explanation of the late arrival of standing doctrine, Professor Vining has suggested that the American usage of the term developed haphazardly in this century without specific introduction. n33 He has also hypothesized that it was derived from the late nineteenth century English parliamentary term locus standii. n34 As I demonstrate below, however, each of these assumptions is incorrect. The term "standing" was in use early in the nineteenth century and did have two apparently accepted meanings unrelated to the modern doctrine of standing. n35 The explicit adoption of the term to signal a new article III concept of justiciability occurs first in Justice Frankfurter's concurring opinion in Coleman v. Miller. n36
3. The Frothingham conundrum.
Frothingham is sometimes read as embodying only the prudential aspects [*1379] of standing, n37 as constrasted with the core, article III criteria of injury-in-fact, causation, and redressability. n38 Nevertheless, sixty years later, "Frothingham's reasoning remains obscure." n39 As I indicated above, Frothingham drew neither on the existing terminology of standing nor on the existing precedent of Fairchild. In light of the modern doctrine of standing, this seems strange. But, viewed in its original historical context, much of what is cryptic in Frothingham can be understood in terms of traditional equity doctrines unrelated to standing, the earlier prerogative writ practice, and older justiciability doctrine. I develop this analysis in Section IV.
4. The causation conundrum.
In the 1970s, the Burger Court added causation as an element of the threshold determination of standing. n40 Professor Chayes has observed that: "Any first year law student, at least after he has read the Palsgraf case, could predict what would happen when the metaphysically undisciplined concept of causation is introduced...." n41 From tort law, we would have assumed that the necessary causal chains would vary as different policies and purposes are implicated. n42 Yet one of the oddities of standing law is that, in its treatment of the issue of causation, a strange uniformity predominates instead. n43 I explain the conceptual groundwork for this phenomenon in Section II and further explore the connections in Section V.
5. The injury conundrum.
One of the constant analytic loops of standing law is the characterization of the injury that is sufficient to confer standing. Under the older legal interest test, the relationship between standing and the merits [*1380] was "demonstrably circular," n44 because what conferred standing was a legally protected interest, and you only had that if the court agreed with you on the merits of your legal theory. The focus of modern standing law on an objective injury-in-fact, which was designed to straighten this out, has proved to be equally dependent on underlying legal assumptions. n45 Thus, in Baker v. Carr, n46 a voter's interest in the relative weight of his or her vote — a matter that is a purely legal construct dependent on one's conceptualization of a properly weighted vote n47 — may be sufficient. Similarly, the Court has recognized Congress's power "to create new interests the invasion of which will confer standing." n48 Thus, a request for information under the Freedom of Information Act n49 is a justiciable controversy even without the usual showing that the person has suffered any "palpable injury." n50
This conundrum is more intractable when one considers United States v. Richardson. n51 There, the Court rejected a parallel claim under the statement and account clause n52 for information about government expenditures because the plaintiff was not "in danger of suffering any particular concrete injury...." n53 In fact, the Court has treated these kinds of constitutional claims as only generalized, political grievances and not "injury of any kind, economic or otherwise, sufficient to confer standing." n54 I will explore the inherent inconsistencies of these doctrines in Section V and will attempt to provide an explanation for and a different means of reconstructing these issues in Section VI.
[*1381] 6. The particularization conundrum.
One of the primary thrusts of standing law has been the requirement of an injury particular to the individual invoking the court's power. n55 This particularization requirement is usually justified as serving the separation of powers policies often identified with standing law: It "forecloses the conversion of courts of the United States into judicial versions of college debating forums." n56 Yet the Court continues to reaffirm the decision in United States v. SCRAP, n57 where the injury that supported standing was an injury to the environment shared by everyone. Similarly, in the fair housing context, the Court continues to recognize interests in integrated living that can be asserted by citizens living in relatively broad geographic areas, such as entire counties. n58
This apparent inconsistency in the application of the particularization requirement has led some commentators to ask whether there are some constitutional rights that are "group rights" and others that are "personal rights." n59 In Section VI, I suggest that this false dichotomy is an artifact of standing law, that it is out of sync with social reality, and that it is responsible for much of the perceived incoherence of standing doctrine.
7. The democracy conundrum
The most appealing justification of standing law is that, in preserving the separation of powers, it protects the majoritarian political process from undue intrusion by the unelected judiciary. But not all issues are amenable to the political process. All too often, the inevitable consequence of a decision denying standing is "that the most injurious and widespread Governmental actions c[an] be questioned by nobody." n60 In those cases, standing law undermines the notion of accountability that supports a constitutional system premised on the rule of law. In Sections VI C and D, I propose a means of recapturing these values.
There is a single thread that holds together the tapestry of this article. What lies behind each of these conundra is our current over-glorification of individualism. It was not always so. At the time of the Framers and in succeeding generations, American law provided several constitutionally acceptable models for the adjudication of group rights at the behest of any member of the public, without regard to the necessity [*1382] of personal interest, injury, or standing. In this article, I apply the concepts of cognitive models and of metaphor to explain this history and how these models were lost. I will also chart how doctrines unrelated to article III were successfully fashioned by liberal justices into an individualist article III limitation on an activist conservative Court. I will then dissect some of the more important modern standing cases to show the disordering effects of standing on our legal analysis and of the private rights model when applied to the public context.
In the final section, I will construct a framework for reconstituting standing doctrine. The warp of that attempt is provided by those modern justiciability cases which have already implicitly abandoned the unidimensional, individualist model of standing. The woof is provided by a theory of human cognition which demonstrates that multiple models and metaphors are necessary to meaningful interaction with the world. Because the individualist weave of current doctrine interferes with meaningful self-governance, I conclude with a discussion of the role of litigation in a democratic society that would employ models of "standing" better grounded in the nature of human cognition and more reflective of human experience. The purpose of this endeavor is to create new models, models that are reconstitutive rather than alienating.
II. THE MEANING OF A METAPHOR
Much of the difficulty, as regards legal terminology, arises from the fact that many of our words were originally applicable only to physical things; so that their use in connection with legal relations is, strictly speaking, figurative or fictional. n61
A. Metaphors of Thought
The law is committed to the use of reason. New discoveries about the nature of reason, therefore, have a natural and necessary place in legal scholarship. To fail to recognize them ultimately would be to deny the role of reason in law.
In ordinary legal discourse, we treat the term "standing" as a legal term of art — a label for a concept or body of doctrine. But much of what goes on in standing can be understood in terms of metaphors and their relation to human cognition. The key to understanding — and to [*1383] unlocking the barrier of standing law — lies in an appreciation that the term "standing" is a metaphor. n62 Its origin no doubt comes from the physical practices of the courtroom: A court will only hear a participant if he or she is standing. "Standing" is therefore a natural metaphor for when a court will consider a litigant's claim; n63 the metaphor is motivated by our experience. n64
The power of a metaphor is that it colors and controls our subsequent thinking about its subject. "This is so, in part, because the concepts by which language expresses an otherwise unrepresentable ... reality are themselves generalizations importing preconceptions about the reality to be expressed." n65 Recent scholarship on human cognition suggests that metaphor is powerful because it is a fundamental component of human reasoning. n66 Metaphor enables us to see systems of analogies not previously recognized. n67 It allows us to use a source domain [*1384] with an existing conceptual structure to understand and structure another conceptual domain. n68 That is, the structure or attributes of the source domain are "carried over" n69 and applied to the target domain.
This process of metaphoric projection is essentially the same as the way in which we use models. "[M]odels ... too, bring about a wedding of disparate subjects, by a distinctive operation of transfer of implications of relatively well-organized cognitive fields." n70 A model, thus, is another way of describing the source domain of a metaphor or an analogy. Recent scholarship indicates that these reasoning processes are cognitively and epistemologically central.
There is a developing body of work on human cognition which suggests that human thought is grounded in physical experience and extended by means of idealized cognitive models and metaphoric projections. n71 According to this theory, basic preconceptual experiences (or schema) provide the organizing principles for the construction of conceptual models. n72 Examples include link schema (such as the umbilical cord, hand holding); container schema (we experience our [*1385] bodies as having an in-out orientation); part-whole schema (we experience directly the relationships between our hands and the rest of the body); n73 and source-path-goal schema (from earliest childhood, we move from one place to another to obtain desired objects). n74 The human capacity to conceptualize allows us to project these structures and to use them to organize other aspects of our experience. To take a simple example, we conceptualize purposes in terms of the source-path-goal schema; this gives rise to systematic source-path-goal metaphors that we use in our thinking about purposes. We can therefore perceive our purposive efforts as going a long way toward our goal, conceptualize something or somebody that interferes with our purposes as an obstacle that gets in our way, and describe some of our failings in terms of being sidetracked. n75
An important part of this theory is premised on the phenomenon of prototype effects. In the classical theory of categorization, all objects having the same relevant criteria are classed together. In this view, no category member is any more "representative" of a category than another. Empirical work in psychology, however, has shown that people within cultures, and sometimes across cultures, n76 pick out the same "prototypes" or best examples of categories. Thus, robins and sparrows are typically identified as prototypical birds; owls and eagles, although birds, are not viewed as prototypical. n77
What explains this phenomenon is the notion that categories have an internal structure which produces these perceptions of best examples. The claim is that categories are structured by means of idealized cognitive models — culturally shared "theories" of how to organize some portion of our experience. These models may be organized in terms of image-schemata like the source-path-goal schema or in terms of a group of related propositions grounded in a physical/cultural experience. An example is the stereotypical conceptualization of "mother" by means of an idealized cognitive model that assumes natural childbirth by a woman who is married to the biological father, and who is also the primary nurturer and full-time caretaker of the child. Women who fit this idealized cognitive model are prototypical "mothers" and are referred to as such. But nonprototypical mothers are marked as such by the linguistic conventions resulting from this model: They are stepmothers, surrogate mothers, biological mothers, foster mothers, working mothers, or unwed [*1386] mothers. n78 Thus, the overall category of "mother" can be understood as a radial category — that is, a category defined by a central model extended by certain "conventionalized variants." n79
Because "prototypes act as cognitive reference points of various sorts and form the basis for inferences," n80 they tend to play an important role in reasoning about categories. Sometimes, we may not distinguish the variants from the prototype of the idealized cognitive model. An extreme example is when a child thinks that the teacher or daycare worker is the mother of the other children. In that case, we have a radical prototype effect in which the prototype overshadows the rest of the category. Other times, we simply fail to perceive the variants as examples of the same category; some might not see any of the nonprototypical mothers as real mothers. In that case, we have a reduction-to-prototype effect in which the category is reduced to the central case of the model, resulting in the exclusion of nonprototypical cases. One consequence of these extreme prototype effects n81 is that the variants may be left unexpressed by the linguistic conventions of the culture. Because they have no name, these variants become suppressed aspects of our social consciousness. Examples would be women who supply an egg to be planted in someone else's womb, legal guardians who do not provide nurturance (Auntie Mame), or transsexuals who had a child before their sex change operation.
B. "Standing" as Metaphor
To the reader unfamiliar with this new scholarship, this may seem either strange or far afield for an article about the law of standing. But by bringing to the surface the models and metaphors that animate standard legal thinking, we will be able to see and talk about both the history of standing and troublesome aspects of the doctrine in a new and enlightening way.
Metaphor is successful in structuring understanding — that is, metaphor is interactive and has ontological effect — because in organizing our [*1387] view of the target domain it both highlights similarities with the source domain and suppresses and hides dissimilarities, which become a species of epistemic "noise." n82 Metaphor can, thus, have as great a potential to mislead as to enlighten.
[W]hile metaphors can be abused in many different ways, the most serious and interesting danger is that a given metaphor or its allegorical extension may be transformed into myth.... [M]yth results when the mask, lens filter, or construing subject is mistaken for or equated with the subject construed. By suppressing those aspects of the principal subject which are not amenable to the subsidiary subject, or by allowing the subsidiary subject to exert an undetected influence on the principal subject, the difference between the two referents of the metaphorical sign focus tends to be lost altogether. The metaphor is turned into, not only a literal truth, but the literal truth about the principal subject in question. n83
The metaphor of "standing" is a myth that has become "the literal truth" and shaped — or misshaped — our thinking about adjudication. It has shaped our thinking about adjudication to conform to two separate "truths" embedded in the metaphor, and to think about them as one. The first is the "truth" of individualism: One stands alone; one stands up; one stands apart; one stands out; one stands head and shoulders above the crowd.
The metaphor of "standing" is thus the lens through which we view the question of who has rights and who may assert them. Through this lens we see only the disconnected individual in a fragmented society. But this perspective obscures the fact that individuals exist only as part of groups and larger communities of interest. And it obscures our ability to think about how best to protect and effectuate those interests in an interdependent world. In the metaphorically structured reality of [*1388] the law of standing, there are no forests and no ecosystems. There are only trees; and only the trees have "standing." n84
The second "truth" embodied in the metaphor is that the individual must have a particular kind of relationship to the court whose power he or she is seeking to invoke: A court will only consider what a party has to say if he or she is standing (read: has "standing"). This view colors our thinking because it focuses us on the relationship between a party's status and a generalized conception of legal process.
Modern standing law defines this relationship between the individual and the process in terms of a particular cognitive model: the private rights model. We structure this model by means of two metaphors premised on the source-path-goal schema: a causal source-path-goal metaphor and a remedial source-path-goal metaphor. We identify the subject matter of a lawsuit through the elements of the causal schema. n85 The defendant's act is the source, the causal chain is the path, and the plaintiff's injury is the goal. The remedial source-path-goal metaphor is virtually a mirror image of the causal one: The individual's injury is the source of a process that has as its goal an order from the court redressing that injury; the path that connects them is the plaintiff's proof that the acts of the defendant caused the injury. n86 The mirror image quality of these two source-path-goal metaphors gives rise to the conception of damages and other forms of legal redress as designed "to put the plaintiff back in the position he occupied" n87 (or as near as possible) before occurrence of the legal wrong.
The model just described is the idealized cognitive model of a private [*1389] cause of action. n88 The tripartite test of standing which focuses on injury, causation, and redressability is thus an extrapolation from the essential elements of the source-path-goal schema of the private rights model. This reductive legal test is a natural byproduct of the "standing" metaphor's ontological effect.
This analysis may seem reminiscent of the traditional view of the origins and functions of the law of standing that I referred to above. n89 What differentiates these perspectives is that the traditional view sees standing law as a rational deduction from objective historical practice. In contrast, I am suggesting that it is historically incorrect and, thus, can only be explained as a function of particular cognitive processes. My view is premised on the recognition that the use of a particular cognitive model has ontological effects in the real world. For example, the primacy of purpose or intent in the definition of widely disparate causes of action n90 is the result of a coherence prototype effect n91 arising from the [*1390] overlap of related cognitive models. Our use of the causal source-path-goal metaphor to conceptualize the subject matter of a lawsuit overlaps with our use of source-path-goal metaphors to structure our view of both purposes and causation. A cause of action is defined in terms of the confluence or intersection of these source-path-goal metaphors. In defining causes of action, we unconsciously experience purpose as prototypical because it is coherent — that is, it fits the entailments of all three uses of the schema.
Thus, we do not ordinarily define a cause of action in terms of the experience of the plaintiff (the source of the remedial source-path-goal metaphor). n92 Rather, we define it in terms of the purposive, causal aspects of defendant's behavior. This explains the Court's otherwise bizarre statement in Daniels v. Williams that "the word 'deprive' in the Due Process Clause connote[s] more than a negligent act...." n93 The victim, of course, experiences precisely the same physical deprivation whatever the defendant's mental state. Similarly, a bystander who simply observes the events would see exactly the same physical actions with exactly the same consequences for the victim regardless of the defendant's state of mind. But the Court, whose view of the scenario is necessarily mediated by cognitive processes, perceives a different and narrower reality. The Court then asserts that its perception is the product of a conventional linguistic expression (that is, "the word ... [*1391] connote[s]"). n94
There are analogous narrowing effects in the context of standing. When the metaphor of "standing" becomes the conduit of certain "truths," it structures our perception of the boundaries of the legal world in a way that is distorting. n95 The "standing" metaphor affects both how we perceive our past and what we receive from it in terms of available legal tools. n96 Viewed through the lens of "standing," adjudication was always about the settlement of private disputes; questions of public values are implicated only incidentally. But this was not always the case. At the time of the Framers, non-individualistic, group models of adjudication, like mandamus and informers' actions, had been designed to deal with public issues. n97 These public rights models were structured in terms of other schemata very much at odds with the modern conceptualization of standing. The "standing" metaphor, therefore, deprives us of a knowledge of our own history. As a result, we lose an understanding of what that history could say to us about our possibilities.
The "standing" metaphor also interferes with our practical ability to face the underlying substantive issues that confront us. When we focus in standing cases on what the metaphor makes us see, we miss some of the suppressed aspects of our reality. The law of standing is, thus, an example of the obfuscatory power of metaphor. n98 We focus on issues such as the role of prudence in standing law or the relationship between standing and the separation of powers, while other real and important issues in the cases remain hidden and largely unexamined. n99 In [*1392] a case like Lyons, the substantive issue left unexamined may be a matter of life or death.
In every standing case, the unexamined issues concern the nature of the right that society is being asked to recognize and the shape of the correlative remedy that it is willing to bestow. They concern the role of law in shaping a self-governing society. Viewed from this perspective, the question "who may sue?" is really a question of "what are rights and how may they best be effectuated?" n100 — a question at the heart of law. Standing obscures consideration and analysis of the underlying questions of rights and remedies, of policies and values, by imposing a single, unidimensional conceptual ordering of the process of adjudication. But, these questions in fact present disparate policy choices that a democratic society must make across an entire spectrum of vastly different problems of social organization.
Analytically, then, standing doctrine is neither a series of rules about when a court will reach the merits nor a shill for a decision on the merits. It is a determination that, regardless of the blinders we employ, necessarily entails considerations that go to the merits. It is not so much a question of the who or the when, n101 as it is inevitably a question of the what. Standing is a decision about the scope of and the policies governing rights and remedies in the underlying subject matter area. Its shape can therefore change from area to area: The question "who may sue?" will be answered differently depending on what they wish to sue about. It may be answered differently in a first amendment case than in an antitrust or tax case. In each, it is a question about how far the benefits of the particular law at issue extend, about the ability of those affected to assert their interests, and about what we gain and what [*1393] we lose when we encourage perception of and action upon shared interests. It is these important questions of policies and values that are obscured by the metaphoric individualist and process oriented approach to standing.
A determination of who has standing, moreover, is a determination about the way society is shaped and structured. In structuring and ordering the universe of legal relationships, standing law inevitably orders the way rights and other legal interests may be distributed. When we persist in seeing only the individual as a cognizable social unit, we limit also the recognizable interests that are available for our consideration either in adjudication or legislation. Thus, for example, there is no meaningful legal interest in a public report of Central Intelligence Agency appropriations because no individual can document a concrete injury as a result of the lack of knowledge about these appropriations. n102 But once a court has said that the citizen has suffered no injury, it will be difficult for the rest of society to see why it should be concerned about the issue at all. If no one is harmed, there seems little reason to devote time and energy in the legislative process to deal with what appears to be a nonproblem. Standing law thus becomes a sort of "harmless error" doctrine for the political process. In this way too, our perception of the who affects our understanding of the what. n103
The question of standing, thus, is also a question about the nature of our relationships in society and our ability to sustain our community. It divides us from one another by reinforcing our individual and conflicting self-interests and by submerging our common stake in the community. It alienates us so that we do not control our government or, ultimately, our fate.
I have stated my thesis. But the test of a theory is in its application. I will develop these ideas in the nitty-gritty of legal doctrine and real cases. We begin with our history.
[*1394] III. THE ORIGINS OF THE PUBLIC RIGHTS MODEL
These ... are my tools of trade. A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these he may venture to call himself an architect. n104
A. Of Framers and Relators, Informers and the Forms of Action
A famous Holmesian dictum has it that "a page of history is worth a volume of logic." n105 The history of standing suggests, however, that history without logic can be easily mislaid. In this section, we will rediscover that history and reconstruct its logic.
The modern doctrine of standing often is justified as grounded in a historical understanding of the language of article III respecting "case[s] or controvers[ies]" or "the judicial Power of the United States...." n106 Justice Frankfurter argued that the provisions of article III:
mean that a court will not decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was, generally speaking, the business of the Colonial courts and the courts of Westminster when the Constitution was framed. n107
Recent decisions continue to reflect this syllogism. n108 Yet. the English, colonial, and post-constitutional practices suggest that the contemporaneous understanding of the "case or controversy" clause considered as [*1395] justiciable actions concerning general governmental unlawfulness, even in the absence of injury to any specific person, and even when prosecuted by any common citizen with information about the alleged illegality. In other words, there was a public rights model structured in terms of alternative schemata.
At the time of the Framers, the concept of justiciability did not embrace notions of standing as we think about them today. It was necessary that a legal question "assume such a form that the judicial power is capable of acting on it." n109 But the Court did not express that concept in terms of "standing" or the essentials of a private cause of action. Rather, it expressed it in formalistic terms, in what I shall call the syllogism of the forms: "[Judicial] power is capable of acting only when the subject is submitted to it, by a party who asserts his rights in the form prescribed by law. It then becomes a case...." n110 This understanding of justiciability predominated until the middle of the twentieth century, from Marshall n111 to Story n112 to Field n113 to Day n114 to Taft n115 to Brandeis. n116 What a court looked for was whether the matter before it fit one of the recognized forms of action.
This justiciability standard reflected the mediating influence of the common law forms of actions on the procedure and substance of private rights. Law was that body of rules that defined the rights of citizens and, concurrently and coextensively, provided a remedy to the injured party. The forms of action stood as the gatekeepers of this system. Thus Blackstone could speak simultaneously of "the several injuries [*1396] cognizable by the courts of common law, with the respective remedies applicable to each particular injury," n117 and of the principle "that where there is a legal right there is also a legal remedy, by suit or action at law, whenever that right is invaded." n118 Based upon these principles, Chief Justice Marshall could draw the more extensive conclusion that "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." n119 Under the eighteenth century common law, rights were synonymous with remedies, n120 remedies were synonymous with the forms of action, and, by algebraic logic, the forms of action were synonymous with the concept of redressable (that is, cognizable) injuries. In this traditional doctrine, one can see reflected the mirror image quality of the remedial and causal metaphors of the private rights model.
One might infer from this that the practice at the time of the Framers was consistent with the private rights model of the "case and controversy" requirement and modern standing law's focus on "injury-in-fact." Although the common law forms of action dominated the legal process and jurisprudential thought of the time, they did not exhaust it. n121 There were other matters of "such a form that the judicial power is capable of acting on" them. n122 Characterized neither by the private rights model of the seven common law forms of action nor by the "injury-in-fact" paradigm of modern standing doctrine, these matters took forms astonishingly similar to the "standingless" public action or "private attorney general" model that modern standing law is designed to thwart.
Prior to the Revolution, other writs as well as equity practices brought before the courts cases in which the plaintiff had no personal interest or "injury-in-fact." Under the English practice, "standingless" suits against illegal governmental action could be brought via the prerogative writs of mandamus, prohibition, and certiorari issued by the King's Bench. n123 The jurisdiction of King's Bench to superintend local governmental authorities by means of these writs developed at the [*1397] close of the seventeenth century. n124
The very availability of these writs as means to control governmental action belies the private rights model; these procedural devices were designed to restrain unlawful or abusive action by lower courts or public agencies, especially actions that were beyond their jurisdiction. n125 These writs fit easily within the jurisprudential thought of the time. n126 As Blackstone explained it, mandamus and prohibition redressed the legal injuries of "refusal or neglect of justice" n127 and "encroachment of jurisdiction," n128 respectively. Neither of these concepts entails a view in which only individuals can be rights-holders. To the contrary, "neglect of justice" and "encroachment of jurisdiction" are essentially communal concerns. n129 And, if Blackstone's definitions of these "injuries" sound strange to modern ears, it is because today's jurisprudence treats "injury-in-fact" in literalist terms. But the common law usage of the term "injury" was plainly metaphoric. n130 The term "injury" referred to "any infringement of the rights of another ... for which an action lies at law." n131 Legal injuries were conceptualized in terms of the experience of physical injury, but the former was not confused with the latter. It is only in this sense that there could be a notion of damnum absque injuria — that is, damage without cognizable legal injury.
Unlike the common law writs, the prerogative writs were not structured in terms of the source-path-goal schema. Rather, the subject matter of the prerogative writs was understood in terms of the part-whole schema: The King's Bench acted on behalf of the King himself (the [*1398] whole of the government) to superintend lower organs (the parts) rather as the head rules the body. n132 Indeed, exactly this metaphor was used by the courts, which described mandamus as "one of the flowers of the crown...." n133
The private rights model entails two source-path-goal schemata, one to structure the subject matter of and another to structure the adjudicative process invoked by the model. Similarly, the public rights model embodied in the prerogative writs entailed a second use of the part-whole schema to structure the adjudicative process. Any part (that is, citizen) could invoke the power of the whole to secure observance of the law; any part could stand for the whole, a legal metonymy. This model therefore required neither injury nor "standing." At common law, these writs were available by suit of a stranger. n134 The citizen-plaintiff's lack of a direct, personal interest did not require that the court ignore the plaintiff's petition. Rather, because these writs invoked the discretionary authority of the royal prerogative, the court retained the power to adjust or withhold the remedy. n135
The English relator practice, which applied also in equity, provided a formalized procedure for this part-whole metonymy. On issues of public rights or public duties, where the English attorney general could sue on behalf of the Crown, any person might seek one of the prerogative writs or bring a suit for an injunction in the name of the attorney general. The litigant, or relator, needed only to obtain the fiat or permission of the attorney general to use his name; such permission was [*1399] granted as a matter of course. Once permission was obtained, the relator prosecuted the action at his or her own expense and without direction from the attorney general. n136 The attorney general, however, was not a necessary party — that is, his fiat was not needed — "where the interference with the public right is at the same time an interference with some private right or is a breach of some statutory provision for the protection of the plaintiff." n137 This latter rule demonstrates that the relator practice clearly contemplated actions by those without a direct stake in the controversy. Thus, as a practical and historical matter, the relator's action extended the availability of judicial remedies to persons not immediately affected by the challenged action by allowing any part to invoke the name and the power of the whole and represent its interests before the courts.
These English versions of the public rights model were familiar to the Framers as "the business of the Colonial courts and the courts of Westminster...." n138 Hayburn's Case n139 illustrates that, although the specific procedural form of the relators' practice did not survive in America, the acceptability of the part-whole schema of the public rights model did survive.
In Hayburn's Case, Attorney General Randolph filed in the Supreme Court a petition for a writ of mandamus to the federal circuit court for Pennsylvania to enforce a congressional statute providing disability pensions to Revolutionary War veterans. n140 The statute empowered the federal circuit courts (which were the superior trial courts) to serve as commissions, determining the amount of the pensions and certifying those determinations to the secretary of war. The secretary of war, however, could disallow a pension and refer the case to Congress. The circuit courts refused to accept these cases.
The Attorney General first sought mandamus in his own behalf, ex officio, to enforce the statutory scheme. He argued that section 35 of the Judiciary Act of 1789 n141 authorized the attorney general to act in this manner. n142 But, only a few months before the argument in Hayburn's Case, Congress had rejected an amendment to the Process Act of 1792, n143 proposed by Randolph, that would have explicitly authorized such actions. n144 A divided Court denied the ex officio motion. n145 Rayburn's [*1400] response was to seek mandamus on behalf of Hayburn, an interested party. n146
A majority of the members of the Court, while sitting in the circuit courts, had expressed the view that the exercise of "judicial power" contemplated by article III was inconsistent with a power to revise the judgment reserved to either the legislature or an executive officer. n147 Hayburn's Case was rendered moot by an amendment to the pension statute; today it stands for the principle expressed by the Justices while sitting in the circuit courts below. But the only issue the Court actually considered in Hayburn's Case was whether the attorney general had the power to sue ex officio. The Court's deadlock on this issue eliminated the availability of the English relator action: The relator could hardly invoke the "standing" of the attorney general if the attorney general had none.
But Hayburn's Case did not affect the viability of adjudicatory models premised on the part-whole schema — that is, it did not reflect a rejection of the English practice treating such cases as justiciable. Rather, the concern in Hayburn's Case was with the proper definition of the whole in a constitutional system of separated powers. The English practice upon which Randolph relied presupposed a sovereign with plenary power to enforce its laws through its attorney general and its courts. It was this premise that the Court did not accept. The executive was no longer the "head" of the body politic, and the federal courts, unlike the King's Bench, could no longer assume that they were free to speak for the whole. Rather, both organs were limited to the exercise of powers given either by the Constitution or, within constitutional limits, by the Congress. n148 Congress was the branch most representative of the American sovereign — the people. It was, therefore, the closest American equivalent to society's "head."
Different institutional premises, rather than doubts about justiciability, led to the demise of the relator form of action in the federal courts. Indeed, Hayburn's Case affirmed another adjudicatory model premised on the part-whole schema. That is, if the Court had intended to require that plaintiffs must have personal injuries in order to establish [*1401] a "case or controversy," then it would have dismissed Randolph's ex officio action at the outset for want of justiciability. Similarly, it would have held the case unjusticiable even after Randolph declared that he was suing on behalf of another.
The Court did not dismiss Randolph's actions for lack of justiciability because it did not repudiate the essence of the public rights model. Today we would see Randolph's actions as an instance of jus tertii — raising the rights of third parties — or what I will call a representational model. The Hayburn Court accepted Randolph's invocation of a representational model, premised on a part-whole structure, that did not require allegation of specific, personal injury: Randolph, a representative of the whole, was allowed to proceed with the mandamus petition on behalf of Hayburn, a part. n149
Although Hayburn's Case undermined the institutional premises of the relator action, American courts continued to entertain similar suits premised on a part-whole schema. Those courts familiar with the English precedents invoked them to allow citizens without particularized injury or interest to question governmental authority. In State v. Justices of Middlesex, n150 the New Jersey Supreme Court invoked the theory that jurisdiction lay to redress what Blackstone called "neglect of justice" n151 to hold that certiorari was available to challenge the conduct of an election. The court found support for its conclusion in the writings of the English jurists, including Coke n152 and Hawkins, who observed that "whatever crime is manifestly against the publick good, it comes within the conusance of this court [the King's Bench], though it do not directly injure any particular person...." n153 The New Jersey court indicated that its discretionary power of certiorari "is sometimes exercised before an injury actually accrues to any one, by issuing a mandamus...." n154 The Court justified this power in communitarian terms:
Where the injury is extensive, and involves any considerable portion of the community, it is better to take up the business in gross.... The reason is [that] the power is necessary for the preservation of the peace of the community; — and with what colour can it be pretended that this court, whose duty it emphatically is to take care that justice is done to [*1402] every one, has no power to protect the interests, and redress the wrongs of an entire county. n155
Although Middlesex was apparently reversed on appeal "before governor and council," n156 its statement of the received common law concerning the prerogative writs nevertheless reflected a great number of the American mandamus decisions. In County Commissioners v. People ex rel. Metz, n157 the Illinois Supreme Court rejected, in language similar to, but directly contradicting, modern standing doctrine, n158 the argument that the plaintiff had not shown sufficient interest to maintain the suit.
The question, who shall be the relator ... depends upon the object to be attained by the writ. Where the remedy is resorted to for the purpose of enforcing a private right, the person interested in having the right enforced, must become the relator.... A stranger is not permitted officiously to interfere, and sue out a mandamus in a matter of private concern. But where the object is the enforcement of a public right, the People are regarded as the real party, and the relator need not show that he has any legal interest in the result. It is enough that he is interested, as a citizen, in having the laws executed, and the right in question enforced.... No doubt is entertained of the right of Metz to become the relator, and pursue this remedy, [sic] The object of the suit is not a matter of individual interest, but of public concern. Any citizen of the county, especially of the locality interested in having the improvement prosecuted, could become the relator, and obtain the mandamus. n159
Other courts emphasized that citizens have a duty, as well as a right, to take legal action when a public right is violated or a public grievance committed. n160
Even without the formal procedural structure of the English relator practice, these American decisions continued to employ the part-whole structure of the common law mandamus action. Metz thus justified the invocation of the court's jurisdiction by a citizen interested in having the laws executed on the ground that there is a live controversy with the [*1403] people who are regarded as the real party. n161 There was no requirement of injury-in-fact or typicality as with the representation of the interests of a class in the modern class action. Given the part-whole structure of the relationship between the parties, I will refer to this original "standingless" model as a constituent model. n162
State practice was far from uniform. By the middle of the nineteenth century, many courts read the English cases as requiring the relator to allege a private right. n163 These courts concluded that, in cases involving public rights, only state officers such as the attorney general or district attorney could sue. n164 Elsewhere, courts and litigants borrowed the form of the relator action, n165 but altered the substance. n166 These cases reflect certain legal and historical misconceptions, n167 and, [*1404] in their period, were perceived by the United States Supreme Court as minority views.
Professor Jaffe documented the development of mandamus in the state courts. n168 Yet the approval of the constituent model in the federal courts has gone virtually unnoticed. In 1875, in Union Pacific Railroad v. Hall, n169 the United States Supreme Court explicitly endorsed Metz and declared: "There is ... a decided preponderance of American authority in favor of the doctrine, that private persons may move for a mandamus to enforce a public duty, not due to the government as such...." n170
In Hall, the Supreme Court considered a petition for mandamus against the federally chartered railroad brought by merchants seeking to require the railroad to maintain a line over the Missouri River that ran from Iowa to Nebraska. As the Court characterized it, these merchants "had no interest other than such as belonged to others" and sought only to enforce "a duty to the public generally." n171 The relevant statute provided only that the circuit courts "shall have jurisdiction to hear and determine all cases of mandamus to compel said Union Pacific Railroad Company to operate its road as required by law." n172 Union Pacific challenged the sufficiency of the plaintiffs' interest to maintain the petition. The Court did not discuss this challenge in justiciability or constitutional terms. Rather, it first upheld Mr. Hall's claim on the merits and then, at the close of the opinion, upheld his right as a member of the public to petition for mandamus on a matter of public right. Basing its judgment on English n173 and American precedent, [*1405] the Court concluded that the petition was proper and affirmed the decision below granting the writ.
With the exception of cases like Hall, the federal mandamus practice remained underdeveloped. The reason is that the Court had systematically rejected general jurisdiction over mandamus actions in the federal courts in a series of three early nineteenth century cases. In Marbury v. Madison, n174 the Court held that Congress could not vest mandamus jurisdiction in the Supreme Court because it was an original action not provided for in article III. Ten years later, in McIntire v. Wood, n175 the Court held that the All Writs Act n176 was not intended to confer general mandamus powers on the federal courts, but only to authorize mandamus in support of jurisdiction otherwise obtained.
These decisions were reaffirmed in Kendall v. United States ex rel. Stokes. n177 There, the Court explained that the federal courts had neither residual common law authority to issue the writ nor sovereign prerogative as in England. n178 The federal courts, therefore, could only issue the writ when Congress provided mandamus jurisdiction. But the Court did not question that jurisdiction when Congress provided it; the Court merely invoked the syllogism of the forms. "That the proceeding on a mandamus is a case within the meaning of the act of congress, has been too often recognised in this court to require any particular notice. It is an action or suit brought in a court of justice, asserting a right; and is prosecuted according to the forms of judicial proceedings." n179 The Court recognized jurisdiction over mandamus only in the District of Columbia Circuit Court on the ground that the congressional statute organizing the District adopted the common law of Maryland and, therefore, adopted as well its common law jurisdiction over mandamus. n180
One might conclude that the Court engaged in this extended guerilla warfare against mandamus jurisdiction precisely because it feared a general judicial power to superintend government. But this argument undermines the historical basis of modern standing doctrine. Had it been available, the standing concept would have solved the Court's fears. It certainly would have made Kendall an easy case. Kendall was a [*1406] case of private right brought by four postmasters to compel the postmaster-general to pay their salaries. n181 Instead of justifying the exercise of judicial power on the theory that Kendall was a case of private rights, the Court engaged in a lengthy discourse on mandamus under the new constitutional system and justified the specific invocation of the judicial power in this mandamus case in a roundabout way. n182 In Hall, on the other hand, the Court accepted jurisdiction even though the plaintiff lacked a personal, private interest. n183 The Court adjudicated the mandamus petition even though it was premised on the part-whole schema of the constituent model; it did so without question because Congress had explicitly conferred the jurisdiction.
Yet another form of public action thrived in America under the Constitution. "Statutes providing for actions by a common informer, who himself had no interest whatever in the controversy other than that given by statute, had been in existence for hundreds of years in England, and in this country ever since the foundation of our Government." n184 These were called "popular actions because they were given to the people in general." n185
An English statute of 1424, for example, imposed a penalty on customshouse officials who embezzled duties paid by merchants. n186 Any informer, unrelated to the transaction, could sue to collect the trebled penalties provided by the statute; the informer sued in his own behalf and on behalf of the King. If successful, the informer kept a third of the judgment. This device was used in the context of regulatory or criminal enforcement and was also employed to enforce legal obligations on governmental officers that did not otherwise give rise to private rights. In a later statute, Parliament provided that an informer could collect a penalty of 500 pounds from an officer who neglected to take the required oath of allegiance to the government. n187
The full extent of the popularity and use of informers' statutes in America has not been documented previously. n188 The colonies and the states employed informers' statutes in a wide variety of cases, including the enforcement of regulatory statutes and morals legislation. n189 These [*1407] statutes provided a common mechanism to regulate, by judicial sanction, governmental officials where there was likely to be no aggrieved party with a private cause of action. One of the earliest statutes was adopted in New York in 1692. Under a statute "for the restraining and punishing of Privateers and Pirates," all commissioned officers within the colony were required to arrest or kill any pirates within their jurisdiction. Any informer could enforce this duty by suit to collect a statutory penalty. n190 An early New Hampshire statute required the officials in each town to erect and maintain a pound for cattle; and it made the obligation enforceable by the public at large through the medium of the informer's suit. n191
The Framers, in their roles as members of the first Congress, passed legislation both creating and facilitating informers' suits. The first Congress was in session only two months when it passed a customs-house informer statute; it subsequently provided federal jurisdiction over informer suits in the Judiciary Act of 1789. n192 These actions suggest that the Framers did not view the "case or controversy" requirement of article III as limiting such "popular actions" as informers' [*1408] suits. n193 The second Congress implicitly approved the practice of informers' suits, providing rules for the award of costs in cases brought by "any informer or plaintiff on a penal statute to whose benefit the penalty or any part thereof if recovered is directed by law...." n194 And, in 1794, the third Congress created informers' suits to enforce its prohibitions against the slave trade. n195 Subsequent Congresses, from 1834 n196 to 1986 n197 continued to use informers' suits for the enforcement of rights accruing to the public at large. n198
The informer's suit employed multiple cognitive models. Informers' suits like those provided for in New York and New Hampshire used the constituent model with a simple part-whole structure as in mandamus: Any member of the body politic with the relevant information was empowered to sue to vindicate the policy choice made by the whole in passing the underlying regulatory law. Any member of the community could enforce the collection of taxes, the provision of police protection, or the maintenance of an animal pound once the community had so determined.
Other informers' suits like those federal actions regulating customs practices, applied more complex models. These statutes presupposed an injury to someone, who would also have a private cause of action modelled on the remedial source-path-goal schema. These statutes nevertheless authorized suit by a stranger with information, allowing the informer to act in a representational capacity. Thus, these informers' actions were examples of a representational model — they were structured [*1409] in terms of the source-path-goal schema of an ordinary private cause of action n199 and a link schema. One link was the informer's information about the injury to the actual victim. n200 The other link was provided by the part-whole schema: One part could speak for the other since each was a constituent of one whole.
Suits by those without personal injury who were acting as representatives of others were not viewed as raising constitutional problems under article III. In Adams, qui tam, v. Woods, n201 Chief Justice Marshall expressed the view that informers' suits were common and ordinary: "Almost every fine or forfeiture under a penal statute, may be recovered by an action of debt, as well as by information...." n202 The Court never questioned the plaintiffs' "standing" in three subsequent informers' actions that it decided in 1885, 1905, and 1943. n203 On the basis of these cases, Justice Harlan, dissenting in Flast v. Cohen, conceded that suits brought by nontraditional plaintiffs — that is, plaintiffs without injury-in-fact — were not barred by article III. n204
B. Cognitive Structure, Prototype Effects, and the Public Rights Model
The public rights model coexisted comfortably with the conceptual system of nineteenth century legal thought. It was in many ways traditional in its structure, even though premised on alternative schemata. Because the public rights model overlapped structurally with the private rights model, however, it seemed like a variant of the latter model. As such, it was vulnerable to the extreme prototype effects discussed in Section II above.
In his classic article on modern public law litigation, n205 Professor Chayes described the traditional, private rights model in terms of five "defining features." He described traditional litigation as bipolar, retrospective, self-contained, party-initiated and controlled, and characterized by an approach that treats right and remedy as interdependent. n206 In contrast, Chayes described the emerging public [*1410] law model as flexible and sprawling in shape, predictive in its fact-finding and prospective in its approach to remedy, judicially managed and activist rather than party controlled, and characterized by a dispute over the operation of public policy rather than over private right. n207
In these aspects, at least, the public rights models of mandamus and of the informer's action that we have considered had more in common with the traditional version of the private rights model than with the emerging public law model described by Chayes. These nineteenth century public rights models were bipolar, initiated by a single citizen against an officer of the government. The litigation was often retrospective; in any event, it was well-bounded by a specific duty or omission and its subject matter concerned quite precise "consequences for the legal relations of the parties." n208 The suit was entirely party-initiated and controlled. Right and remedy were interdependent, controlled no less by the writ system than were the common law forms of action. n209 The lawsuit was only partially self-contained in the sense employed by Chayes: The entry of judgment ended the court's involvement, but its impact was not confined to the particular litigant who prosecuted the action. Rather, it affected the "real party in interest": the entire community. n210
These similarities between the original public and private rights models reflect a common experiential grounding by means of the conventional metaphor rational argument is war. n211 In our culture, we conceptualize rational arguments in terms of basic physical combat: "There is still a position to be established and defended, you can win or lose, you have an opponent whose position you attack and try to destroy and whose argument you try to shoot down. If you are completely successful, you can wipe him out." n212 This same set of [*1411] conceptualizations governs in legal matters. n213 Thus, Professor Chayes described traditional litigation as "a contest between two individuals or at least two unitary interests, diametrically opposed, to be decided on a winner-take-all-basis." n214 Here we have a reference to the array of opposing forces in battle and the principle of "to the victor belong the spoils" that have characterized warfare throughout much of human history.
Our use of the rational argument is war metaphor to organize our models of litigation is not arbitrary or accidental, but rather is motivated by human experience. Physical combat and rational argument are both means of obtaining desired ends such as food, property, status, and control. Until the development of sophisticated weaponry in modern times, even organized combat was inherently hand-to-hand and one-on-one. The bipolar, individualized nature of the private rights model thus reflects directly the historical experience of combat.
The public rights models of the nineteenth century retained this bipolar structure by employing a representational model, a metonymy premised on the part-whole schema and motivated by the battle metaphor. Opposing forces sometimes settle their differences through the combat of champions subject to a "winner-take-all" agreement. n215 Representation of the whole (the army) by the part (the champion) avoided greater bloodshed. In an even more civilized version, the opposing forces sent emissaries to avoid fighting via a diplomacy in which reason replaced physical combat. The constituent model of mandamus mimicked this model in the legal sphere. In cases like Hall or Metz, a single member of the public adjudicated the concerns of many. This model was an advance over the inefficient and disruptive effects of a multiplicity of private suits. The role of the courts was to coordinate and vindicate the greater interests of the whole, n216 by employing the [*1412] part-whole schema of mandamus.
The rational argument is war metaphor also accounts for the radical prototype effect in our thinking about justiciability. Warfare is a natural source domain for the source-path-goal metaphor. Whatever the purpose of the fight, it involves advancing on the enemy's position and trying to take it. Structuring rational argument metaphorically as we understand battle, we employ a source-path-goal schema in our conceptualization of argument. Adjudication involves rational argument and is one kind of human purposive endeavors. It is, therefore, naturally conceptualized in terms of a source-path-goal schema. Adjudicatory models premised on a part-whole schema, like mandamus, are ultimately crowded out of our concept of justiciable controversies.
As such, adjudication is a radial concept. All of its submodels share the core source-path-goal schemata of arguments and purposes. The causal and remedial source-path-goal metaphors of the private rights model and the part-whole and link metaphors of the public rights models radiate from this core. The private rights model seems, therefore, to be more central to the concept of adjudication — a coherence prototype effect. Thus, the remedial source-path-goal metaphor of the private rights model is seen as the primary case, or prototype, of adjudication. In comparison, the public rights model doesn't quite seem to fit; it seems "of a peculiar and eccentrical nature." n217
As a variant of this prototypical structure, public rights litigation was an intermediate category between private law disputes, on the one hand, and politics, on the other. This was reflected in the substantive, procedural, and jurisdictional aspects of public rights law. Substantively, the public rights law occupied an intermediate status between the realm of inviolable vested rights and political discretion. It concerned affairs of the whole n218 such as public roads, n219 navigable rivers, n220 [*1413] railroads, n221 morals legislation, n222 and the performance of public officers. n223 But it included only those matters that could be governed by legal reason and the constraints of the "right and remedy" formulation. Mandamus thus excluded from its purview public matters that involved discretion, n224 leaving such matters to the political process. n225 Moreover, public rights matters were more vulnerable than were private suits to the intervention of politics: Legitimate concerted actions of the whole (subsequent legislation, for example) could defease the public right asserted by the litigant, even during the course of the lawsuit. n226
Procedurally, the models of access for raising claims of public right allowed individuals to command the attention of the law, as in the private rights model. But, as in the political sphere, these models required no personalized injury peculiar to the plaintiff. Jurisdictionally, the authority to consider matters of public right was understood neither as inherently judicial nor as nonjusticiable. Rather, the question of justiciability was left to the discretion of Congress, as in mandamus cases like Kendall and Hall. n227
The public rights concept filled an important social and legal need in the eighteenth and early nineteenth centuries. During this period, the Anglo-American governmental structures had yet to develop the large scale, bureaucratic organizations that characterize our modern governments. Thus, in England, most criminal prosecutions were brought by the victims themselves, in their own name and in the name [*1414] of the Crown. n228 Similarly, local governmental action was often the bailiwick of a quasi-judicial board of commissioners, as in England, n229 or the local circuit court, as in the Colonies. n230 The public rights model provided a vehicle for direct participation by the citizenry that was not available in any other manner.
Part of the explanation of the demise of the public rights model lies in its declining social and political utility in the mid-nineteenth century. As public agencies such as district and county attorneys were established, the need decreased for private attorneys general. This was reflected in the 1840s and '50s by those courts which held that only the public officers could bring public rights suits. n231 The increased desuetude of the public rights model resulting from the gradual expansion of these public agencies, coupled with the cognitive eclipse of the model as a result of the extreme prototype effects described above, led to the almost total loss of the public rights model from modern legal awareness.
The intermediate legal status of the public rights model explains three common anachronisms in current legal scholarship that are a function both of our reading of nineteenth century material through the lens of twentieth century concepts n232 and of the phenomenon of prototype effects. The first anachronism is the now conventional reading of Murray's Lessee v. Hoboken Land Improvement Co. n233 as a discussion of the power of Congress to assign certain matters — designated "public rights" — to article I tribunals. n234
[*1415] When viewed in light of the new historical evidence presented above, however, it becomes clear that Murray's Lessee explicates instead the intermediate status of the public rights model. On the page before the passage that is cited as referring to article I Tribunals, Justice Curtis explained that:
[t]hough, generally, both public and private wrongs are redressed through judicial action, there are more summary extrajudicial remedies for both. An instance of extrajudicial redress of a private wrong is, the recapture of goods by their lawful owner; of a public wrong, by a private person, is the abatement of a public nuisance; and the recovery of public dues by a summary process of distress, issued by some public officer authorized by law, is an instance of redress of a particular kind of public wrong, by the act of the public through its authorized agents. n235
Murray's Lessee distinguishes between personalized private injuries and matters affecting the whole (such as public nuisance and public dues). The passage in Murray's Lessee concerning Congress' discretionary power to assign matters affecting the Whole to the courts is in its historical context an expression, congruent with the Court's acceptance of congressionally authorized mandamus actions in Kendall and Hall, of the intermediate jurisdictional status of the public rights model. n236
[*1416] The second anachronism is the attribution of the private rights model of constitutional adjudication to Marbury v. Madison. n237 Marbury was a mandamus case and, thus, a manifestation of the public rights model. But this case arose in the context of a claim of private right, which perhaps makes it the most celebrated but misunderstood illustration of the intermediate legal position of public rights law. Much of the legal discussion in Marbury concerned the power of the courts to require compliance with the law on the part of executive officers and the scope of mandamus as an instrument for that purpose. n238 The significance of the Court's ruling in its own time was its assertion of mandamus power over senior officers of the government. n239 Its novelty lay in suggesting that Congress could only vest that power in the lower courts n240 and not in the Supreme Court, which was the closest American equivalent to King's Bench.
Marbury's assertion of the power of judicial review followed naturally from the affirmation of the public rights model of mandamus power over executive officials. Marbury's apparent focus on individual injury as a condition precedent to the court's adjudication n241 was a settled part of the law of mandamus in cases of private right, as we saw in Metz, and not a sine qua non of all constitutional cases. n242 The modern perspective on Marbury as an instance of the prototypical private rights model, rather than an instance of the intermediate public rights model, is a radical prototype effect.
The intermediate legal status of the public rights model and the phenomenon of prototype effects also help explain a third historical misconception common to most legal scholarship in this area. Traditional [*1417] analyses describe the issues raised by nineteenth century citizen-government relations as concerning intrusions upon citizens' autonomy — a sphere marked by the common law protections of person and property. In this view, the private rights model was sufficient to mediate and accommodate these concerns, but not the twentieth century concerns about governmental denial of expected entitlements. n243 Modern tensions in standing law have been attributed, incorrectly, to these ostensible shifts in the focus of citizen-government relations from concerns about autonomy to issues of entitlement. n244
But the problems of the nineteenth century were not so purely "Lockean." n245 They also concerned entitlements no less central to the citizen-government relationship than welfare benefits or access to government contracts are today. In a geographically and commercially expanding nineteenth century America, the building of roads and the maintenance of navigable waterways were matters of public concern. Metz and Hall were public rights cases about problems arising from these entitlements. The public rights model could have provided a nineteenth century paradigm for modern litigation about entitlements. It didn't, in part because it had been eclipsed by the private law prototype and in part because of the systematic attempt to dismember the public rights model from 1900 onward.
IV. THE RISE OF STANDING
Metaphor creates a new reality from which the original appears to be unreal. n246
A lot happened to "standing" between the time of John Marshall and Felix Frankfurter. The term started out as a nonspecific metaphor, gained currency in equity, and only later became a constitutional doctrine. It will require Holmesian (Sherlock, not Oliver Wendell) deduction to reconstruct that story, and it will prove anything but elementary.
This section is divided into five parts. The first traces the usages of the term "standing" from Justice Marshall to Justice Brandeis. We will see the ontological effect of the metaphor in equity, as it exerted pressure on judges and lawyers to see what had been questions of substance and of remedy as a jurisdictional question of access to a court of equity.
The second subsection traces the history of the concept of jus tertii. Originally conceived as a requirement of the Supreme Court's jurisdictional statute, it became a tenet of individualism that eviscerated the [*1418] representational models premised on link schemata such as the part-whole metaphor for society. Its primary elaboration came in equity, with its emphasis on the individual's irreparable injury as the sine qua non for the exercise of the court's power.
The third subsection turns to the viability of another version of the representational model during this period. It briefly traces the doctrinal battle over the capacity of a state (as the whole) to vindicate in the federal courts the interests of its citizens (its parts). We will see the Court still vacillating between the private and the public rights models in this area as late as the 1970s.
The fourth subsection takes up the equity versions of the constituent model: shareholder derivative suits and taxpayer actions. We will see Justice Brandeis' largely unsuccessful efforts to bar their use. We will see, too, his near capitulation in 1937. From those ashes we will see Justice Frankfurter single-handedly raise the phoenix of standing. The final subsection sketches the historical context which suggests the motivation of these determined efforts.
A. Substance, Remedy, and the Ontology of "Standing"
The term "standing" was in use in Justice Marshall's time; it was first used as a metaphor to describe the legal relationship of parties. In Lidderdale's Executors v. Executor of Robinson, n247 a case involving the priority of creditors, the Court held that sureties "succeed to the legal standing of their principal...." n248 In Galloway v. Finley, n249 an equity action for the rescission of a contract to purchase land, the Court held that a buyer who learned that the seller had bad title "could not be permitted to avail himself of it whilst standing in the relation of a purchaser, to defeat the agreement...." n250
The Court eventually used the term "standing" to describe a party's status in the litigation. This usage took two forms, both unrelated to the modern standing doctrine. The Court used the metaphor most [*1419] commonly to indicate that a party had no claim on the merits, as it did in a series of cases concerning land claims in the Louisiana Purchase by those with preexisting Spanish title. n251 Congress had required that title be confirmed by a federal commission. Many of the original settlers failed to obtain such confirmation, and the Court held against them expressing its holding in the language of "standing." In Les Bois v. Bramell, for example, the court rejected plaintiff's unconfirmed Spanish title because "her claim had no standing in a court of equity or of law...." n252
The Court used the term "standing" to refer to the claimant, not the claim, in its rejection of the claim on the merits in Ritchie v. Franklin County. n253 Mr. Ritchie brought an equity action as a taxpayer to establish that bonds issued by the county court pursuant to state statutory authority were illegal under the state constitution. He sued the county court and the holders of the bonds. The case came to the Court on plaintiff's exceptions to the answer. The Court upheld the validity of the bonds, n254 and concluded that "as the defendants claim to be innocent holders, ... the complainant has no standing in a court of equity." n255
Although in both Les Bois and Ritchie the Court used the term "standing" to indicate a loss of the suit on the merits, the two cases differ substantially when analyzed according to the modern doctrine of the same name. The private rights model characterized Les Bois; the plaintiff had clearly suffered particularized injury redressable by a common law court. By contrast, the constituent public rights model applied to Ritchie; Mr. Ritchie had suffered no demonstrable injury and he shared his grievances with all other taxpayers of the county. In neither case did the Court engage in an analysis that remotely resembled modern article III standing. In each case, the Court's explicit consideration of "standing" was an inquiry into the merits. n256
[*1420] The Court also used the term "standing" to describe those parties identified by article III as supporting party-based subject matter jurisdiction. In Livingston v. Story, the Court dismissed a diversity case because the plaintiff had not properly pled the parties' citizenship for purposes of diversity jurisdiction. Justice Baldwin argued in dissent that "like all others material to the plaintiff's standing in court, [the plaintiff] was bound to prove it when called on by an answer, which did not admit, or put it in issue by a denial." n257 In Georgia v. Stanton, n258 the Court used the metaphor to characterize the decision in Cherokee Nation v. Georgia n259 "that the Cherokee Nation could not be regarded as a foreign nation within the Judiciary Act; and, that, therefore, they had no standing in court." n260
The term "standing" had a third nineteenth century usage that first appeared in equity cases concerning public nuisance. In Georgetown v. Alexandria Canal Co., n261 the city of Georgetown sought an injunction in federal court to stop the construction of an aqueduct over the Potomac River that threatened to obstruct both the channel and the harbor. The Court held that the case was not proper for a court of equity. It expressed this in the language of a familiar battle metaphor: "[T]he plaintiff cannot maintain a stand in a court of equity...." n262
Doctrinally, Georgetown had nothing to do with article III; the case was solely and explicitly an artifact of the historic jurisdictional fight between law and equity. The Court first discussed the exercise of criminal jurisdiction over public nuisances by the law courts. n263 It then traced the tenuous exercise of equity jurisdiction over public nuisances, which "had lain dormant for a century and a half ... from Charles I. [*1421] down to the year 1795." n264 The compromise in this jurisdictional battle between law and equity was a doctrine that required special, private injury as a prerequisite for an injunction against a public nuisance. n265 The Court accordingly held that the city was not a proper plaintiff.
The significance of Georgetown in the development of standing is not doctrinal but cognitive. Toward the end of its opinion, the Court admonished that:
The appellants seem to have proceeded on the idea, that it appertained to them, as the corporate authority in Georgetown, to take care of and protect the interests of the citizens.... But ... the persons who, by name, bring the suit, and constitute the parties on the record, [must] have themselves an interest in the subject-matter.... n266
Though this passage appears in a case that was solely about equity doctrines, its language foreshadows that of the later constitutional doctrine of standing. For, Georgetown and its progeny rejected for equity the kind of representational model premised on a part-whole schema that characterized Hayburn's Case and mandamus. n267 The invocation of the representational model by the city was consistent with the notion of a municipal corporation; the term is itself a part-whole metaphor for the human body. n268 The Court, however, rejected just this assertion by the appellants of the right to sue as "the corporate authority in Georgetown." This rejection of the representational model premised on a part-whole schema was not final, of course; the Court vacillated on this point both in Hall n269 and in later equity cases. The most notable of [*1422] these was In re Debs. n270
When, in Debs, the Court considered the "standing" of the federal government to obtain an injunction to stop the Pullman strike of 1894, it did not consider an article III, "case or controversy" question of standing. Rather, it asked whether the government had acted within its delegated authority and whether, "[i]f authority exists, as authority in governmental affairs implies both power and duty, has a court of equity jurisdiction to issue an injunction in aid of the performance of such duty." n271 The Court concluded that the appeal by the government to a court of equity was appropriate on two grounds. First, the Court invoked a private rights model for the government's position: "It is said that equity only interferes for the protection of property, and that the government has no property interest. A sufficient reply is that the United States have a property in the mails, the protection of which was one of the purposes of this bill." n272 But the Court did not rest there; it applied the public rights model directly — invoking the government's obligation "to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare," — as a "sufficient" ground to confer upon the government "a standing in court." n273
In these nineteenth century "standing" cases, the central inquiry was whether the litigant asserted the kind of interest or right for which equity would provide a remedy. In Ritchie, the litigant had asserted a claim that equity would not enforce against an innocent purchaser. Similarly, in Debs, the Court considered what kind of rights, both public and private, were enforceable by equity. n274 Despite the use, by the Court in Georgetown, of a variant of "standing" in connection with its insistence on a private rights model, the Debs Court reaffirmed the public rights model in upholding the "standing" of the federal government.
The significance of Debs to modern standing doctrine was purely linguistic. To appreciate this, it is necessary to understand how wide was the gap between the original understanding of "standing" — with its grounding in substantive considerations of equitable rights and remedies — and the later imposed requirement of "injury-in-fact." This gap lasted well past Frothingham; it wasn't until much later that the term "standing" was understood as expressing a purely procedural concept.
The Chicago Junction Case, n275 decided a year after Frothingham, illustrates the gap between the original substantive meaning of "standing" and its later procedural usage. There, competitor railroads brought a [*1423] suit in equity to set aside a sale approved by the Interstate Commerce Commission. The defendants claimed that the plaintiffs had "not the legal interest necessary to entitle them to challenge the order." n276 Writing for the Court, Justice Brandeis first observed that the plaintiffs had "a vital interest.... The diversion of traffic has already subjected the plaintiffs to irreparable injury ... exceed[ing] $ 10,000,000." n277 That assertion did not address the relevant question because what the litigant needed for "standing" was not literal injury, but a redressable right or legal injury. The Court found that right not in "the incident of more effective competition," but rather in the statutory "injury inflicted by denying to the plaintiffs equality of treatment." n278
Justice Sutherland dissented on the ground that the railroads had no "remediable interest." He phrased this argument in terms of "standing." n279 But he did not invoke an article III doctrine; he relied on general principles. n280 "What constitutes a legal or equitable right, interference with which may give rise to an action? may be tested; and the determination of that question must still rest upon general principles of jurisprudence." n281
[*1424] As late as Ashwander, n282 Justice Brandeis shared Justice Sutherland's doctrinal premises. In his famous concurrence in Ashwander, Justice Brandeis opined that the plaintiffs did not have standing, stating that "[t]he obstacle is not procedural. It inheres in the substantive law, in well settled rules of equity, and in the practice in cases involving the constitutionality of legislation." n283 Justice Brandeis derived none of these three obstacles to "standing" from article III. n284 Even his invocation of the constitutional practice was prefaced with the observation that the rules developed by the Court were "for its own governance in the cases confessedly within its jurisdiction...." n285
It is this understanding of "standing" as substantive that illuminates the significance of cases like Debs: Debs illustrates the ontological effect of the metaphor. In the nineteenth century, the phrase "a standing in court" n286 was used to refer to the party's ability to obtain equitable remedies from the courts. This phrase suggested that standing was a jurisdictional question, as in Livingston or Cherokee Nation. That interpretation was consonant with both the historical view of equity as a separate jurisdiction (as it had been before the merger of law and equity) and the notion that jurisdiction in equity was founded on the availability of certain remedies.
But the discussion of concepts of rights and entitlement to equitable remedies in jurisdictional terminology was understood by the most eminent legal scholars of the day as an inaccuracy needing correction. John Pomeroy decried the phenomenon in 1892: "[T]he 'equity jurisdiction' [*1425] is constantly confounded with the right of the plaintiff to maintain his suit...." n287 In 1926, in State Grange v. Benton, Justice Holmes admonished that: "Courts sometimes say that there is no jurisdiction in equity when they mean only that equity ought not to give the relief asked. In a strict sense the Court in this case had jurisdiction." n288 At the very time of Frothingham and Fairchild, the Supreme Court was trying to disentangle "standing" from notions of jurisdiction. In 1926, the Court wrote: "Whether a plaintiff seeking such [equitable] relief has the requisite standing is a question going to the merits, and its determination is an exercise of juridiction. If it be resolved against him, the appropriate decree is a dismissal for want of merits, not for want of jurisdiction." n289
Nevertheless, the ontological effect of the metaphor was overpowering: "A standing in court" sounds like a question of jurisdiction because standing up is a prerequisite to being heard in court. Justice Holmes, Pomeroy, and the Supreme Court did battle with the metaphor, but lost. "Standing" became a question of jurisdiction in the more fundamental sense of justiciability under article III.
B. Jus Tertii and the Elaboration of the Individualist Model
The analytic antecedents of the modern doctrine of standing can be traced to the cases that we now see as presenting problems of jus tertii: when a litigant seeks to invoke rights "belonging" to a third party. n290 The connection between the jus tertii cases and their modern doctrinal descendent lies in their common conceptualization by means of the individualistic metaphor of "standing." If a litigant can assert only his or her own "personal" rights, then that person cannot assert the rights of another (jus tertii) and that person cannot assert the rights of the group (standing) unless he or she actually has suffered personal injury and the rights asserted are only coincidentally those of the group.
Viewed through this lens, both jus tertii and modern standing cases concern situations in which the court dismisses the litigant's claim because he or she is the wrong person to assert it. But these two types of cases relied on different doctrines. The jus tertii cases were not premised on article III minima derived from the "case or controversy" requirement as is the modern understanding of standing. As Justice Brandeis explained in Ashwander, jus tertii was a rule the Court applied in [*1426] "cases confessedly within its jurisdiction...." n291 None of the jus tertii plaintiffs lacked the requisite relationship to the court now delineated by the modern doctrine of standing. Each plaintiff had a sufficient interest to make the dispute a "case." Each had suffered an injury-in-fact; each was affected in a particularized way by the private or public actions about which he or she complained; and, had the courts adjudicated the claim, each predicament would have been redressed by the relief sought.
Equity doctrine provided the link that allowed jus tertii cases to become transformed into the modern standing doctrine with its focus on injury and direct causation. To document this link, I will demonstrate that the jus tertii doctrine itself evolved from two separate lines of cases.
The first line of cases evolved from an 1809 decision by Chief Justice Marshall in Owings v. Norwood's Lessee. n292 Mr. Owings, the defendant in an ejectment action, had come into possession of the property after an attachment and unexecuted judgment of condemnation had been obtained by a creditor of the mortgagee. n293 Mr. Owings' defense to the plaintiff's claim of title was that superior title had passed to the mortgagee, an English merchant named Mr. Scarth. The Maryland courts held that Mr. Scarth's interest had been confiscated by the state in 1780. Mr. Owings argued that the confiscation in fact occurred in 1794 and, therefore, was invalid under the provisions of the treaty of peace with England. The Court held that it had no jurisdiction because "[t]he 25th section of the judiciary act must be restrained by the constitution, the words of which are, 'all cases arising under treaties.' The plaintiff in error does not contend that his right grows out of the treaty." n294
The next day, plaintiff's counsel addressed the Court, stating his understanding of the basis of the Court's decision. He suggested that the Court had reached its decision by interpreting its power to review state court judgments "where the party himself did not claim title under a treaty." Chief Justice Marshall respondend that plaintiff's counsel "had misunderstood the opinion of the court, in that respect. It was not that this court had no jurisdiction if the treaty were drawn in question [*1427] incidentally." n295 Rather, Mr. Owings could not invoke the Court's appellate jurisdiction because his was not a case presenting a federal question. n296 Mr. Owings claimed no title under the Englishman Scarth. Nothing in the case concerned the rights or treatment of an English national, the subject to which the treaty's provisions were addressed. The invocation of Mr. Scarth's title was relevant only as a matter of state property law to defeat the plaintiff's ejectment claim. n297 That question could be invoked by Mr. Owings in the Maryland courts. n298 But, the purposes of the treaty protections — that is, the federal interests n299 — were absent; the case was wholly dependent on state law. n300
In its own time, however, Owings was understood as construing section 25 of the Judiciary Act of 1789 as limiting the Supreme Court's appellate jurisdiction to cases in which the plaintiff-in-error claimed or set up a title of his or her own derived from the Constitution, a treaty, or a law of the United States. n301 This was, in part, because Chief Justice Marshall's opinion appeared to be concerned with the definition and ownership of rights. n302 It is not surprising that this notion of jus tertii was understood as statutory rather than constitutional. For the contemporaneous informer, relator and mandamus cases taught that article III did not necessarily bar a litigant from raising another's rights. If [*1428] there was a rule of law that did so, it would have to have been the statute. The Court continued to interpret its jurisdictional statute as the source of the principle of jus tertii well into the twentieth century. n303
The generalized notion of jus tertii that we are familiar with today developed instead from an entirely different source: state mandamus cases as interpreted by Dean Thomas Cooley. n304 Precisely because mandamus practice allowed strangers to litigate constitutional claims of governmental excess, those queasy about the exercise of the strong medicine of judicial review questioned whether any public spirited citizen should be able to invoke it.
This notion of jus tertii was derived from the distinction between unconstitutional statutes as void or merely voidable. n305 In Marbury's conceptual system, unconstitutional statutes were conceived of as void because beyond the legislative power in the first place. n306 Marbury's conception was soon questioned in the state courts, where the practice of judicial review was recognized, but not embraced so unqualifiedly. In re Wellington, n307 the Massachusetts court propounded its own, premature Brandeisian catalogue of devices for avoiding the invalidation of state statutes on constitutional grounds. n308 Amongst these was the recognition that when such an act is alleged to be void, on the ground that it exceeds the just limits of legislative power, and thus injuriously affects the rights of others, it is to be deemed void only in respect to those particulars, and as against those persons, whose rights are thus affected. n309
Wellington was a classic public rights case. Joshua Wellington and his co-plaintiffs sought, by means of mandamus, to compel county commissioners "to consider and determine whether it be of common convenience and necessity," that a road be built across a corner of Cambridge [*1429] common. n310 On the merits, the petitioners argued that the state statute establishing the commons was unconstitutional because it failed adequately to provide for compensation to the original property owners, all of whom were third parties. The court recited the limitation noted above, but ruled against the third party claim on the merits. n311
Only at the close of the opinion did the court consider "whether the petitioners in the present case stand in such a relation to the cause and the subject matter, as to warrant them in applying to this Court for a writ of mandamus." n312 It suggested that "it may perhaps be urged with some force, that petitioners so situated are parties and as such have an interest in the final and correct determination of the cause...." n313 Ultimately, the court concluded that it need not reach the "standing" question because it disposed of the case on the merits of petitioners' third party claim. n314
But Dean Thomas Cooley adopted Wellington's notion that statutes were only unconstitutional as applied to specific people. He discussed it in his influential treatise on constitutional limitations on state governments, n315 a major source of late nineteenth century legal views on individualism. n316 Cooley interpreted Wellington as a case about the individualistic basis of rights that stated a general rule of jus tertii: "Nor will a court listen to an objection made to the constitutionality of an act by a party whose rights it does not affect, and who has therefore no interest in defeating it." n317
Some state courts applied Cooley's analysis n318, but the Supreme Court was initially less receptive. n319 Thus, although the Court asked [*1430] the rhetorical question in Supervisors v. Stanley, n320 — "What legal interest has he in a question which only affects others?" n321 — it did not decide the case by invoking Cooley's (or Owings', for that matter) concept of jus tertii. Rather, the Court concluded that the New York statute "was voidable but not void." n322 It found that the provisions of the New York statute were severable, n323 and could be applied in cases in which no conflict with the federal statute existed. n324
The watershed came in three cases at the turn of the century. In the first, Clark v. Kansas City, n325 the Court cited Cooley and Stanley as illustrations of the proposition that "a court will not listen to an objection made to the Constitutionality of an act by a party whose rights it does not affect and who has therefore no interest in defeating it." n326 In Clark, a railroad challenged a state statute exempting agricultural land from municipal annexation. It argued that the statute discriminated between the owners of agricultural and other types of land, as well as among owners of various classes of agricultural land, in violation of the equal protection clause. n327 Because the railroad owned no agricultural land, the Court only considered the alleged discrimination between owners of agricultural and nonagricultural land, but would not consider discrimination among owners of various classes of agricultural land. The Court applied the source-path-goal metaphor of the private rights model; because the railroad had suffered no legal injury — that is, no source for the remedial request the railroad — had no cause of [*1431] action. n328
The second case, Tyler v. Judges of the Court of Registration, n329 is the most significant of the three: It is one of two opinions authored by Justice Brown that form the basis of the modern standing doctrine; n330 it was the first opinion to combine the statutory and generalized versions of jus tertii; n331 and, most importantly, it was a prerogative writ case, thus challenging the viability of the representational model on its home turf.
Tyler was a challenge to the Massachusetts Land Registration Act of 1898, n332 which provided for an in rem proceeding through which an owner could settle title as against all potential claimants. Mr. Tyler was the owner of a lot adjoining one that was about to be registered; he was concerned that the registration, specifying the boundaries of the lot, would prejudice a dispute over the boundary between that land and his. He sought a writ of prohibition to stop the registration court from proceeding. He argued that the registration statute was unconstitutional because it failed to provide notice to absent third parties who might have an interest in the land to be registered. The Court declined review because Mr. Tyler clearly had notice, and therefore did not have "the requisite interest to draw in question the constitutionality of this act...." n333 Mr. Tyler could not invoke the concerns of others, who had to complain for themselves. n334
The four dissenters were astonished by the Court's ruling. n335 And [*1432] they had good reason to be: Massachusetts Supreme Court Chief Justice Holmes had authored the opinion below and had not questioned Mr. Tyler's capacity to bring the action. n336 Furthermore, in Massachusetts in 1900, as at the time of the Framers, a writ of prohibition of the type sought in Tyler was available at the behest of a stranger, let alone a petitioner with an injury of his or her own. n337
But Justice Brown and the majority opined:
The prime object of all litigation is to establish a right asserted by the plaintiff or to sustain a defence set up by the party pursued. Save in a few instances where, by statute or the settled practice of the courts, the plaintiff is permitted to sue for the benefit of another, he is bound to show an interest in the suit personal to himself, and even in a proceeding which he prosecutes for the benefit of the public, as, for example, in cases of nuisance, he must generally aver an injury peculiar to himself, as distinguished from the great body of his fellow citizens. n338
The Court failed to explain in doctrinal terms why Mr. Tyler's action did not provide a proper "instance[] where, by ... the settled practice ..., the plaintiff is permitted to sue for the benefit of another." The Court also ignored the fact that Mr. Tyler had alleged an injury peculiar to himself: an adjudication by the registration court of the boundaries of the adjoining property that would, at least de facto, alter his rights. Finally, the opinion invoked the law of nuisance as its paradigm, an analogy underlining the degree to which the notion of "standing" was bounded by the relevant substantive law and, thus, undermining the Courts generalized assertion that a plaintiff could not sue on behalf of others.
What Justice Brown's opinion did instead was neatly to sever the plaintiff's connection to the absent third parties by rejecting the sufficiency of the part-whole metaphor for society: Mr. Tyler needed to make a personalized legal claim "as distinguished from the great body of his fellow citizens." n339 Doctrinally, the opinion invoked Owings and its progeny n340 — as well as aspects of justiciability such as mootness, ripeness, and the ban on advisory opinions. n341 It did not raise the question [*1433] we now view as central to standing: the degree of injury a litigant must suffer to establish his or her entitlement to use the judicial process. To the contrary, Justice Brown acknowledged that Mr. Tyler was free to intervene in the registration process and pursue his claim in that case all the way to the United States Supreme Court. n342
Thus, Tyler was not a case of article III standing in the modern sense. But, it was an important step toward the modern doctrine because it specifically rejected application of the representational model with the writ of prohibition. The final link, transforming a doctrine preventing injured parties from invoking third party rights into a doctrine requiring direct injury, came from familiar doctrines of equity. n343 Two years after Tyler, in Davis & Farnum Manufacturing Co. v. City of Los Angeles, n344 Justice Brown employed the metaphor of "standing" and invoked the jus tertii reasoning of Tyler by analogy.
In Davis, a subcontractor on a gas tank construction project sought to enjoin Los Angeles from enforcing municipal ordinances banning the project. The subcontractor had an obvious economic interest in the project, and employees of the subcontractor were being prosecuted for violating the ordinance. The subcontractor sought to enjoin the pending state criminal proceedings on constitutional grounds, claiming that later enacted ordinances impaired the obligation of a preexisting contract to build the gas works. n345 In his opinion for the Court, Justice Brown dismissed the subcontractor's interest as too indirect: "[T]his is not a bill by ... the owner of the land and of the proposed gas works ... nor by the contractor, with which she had made a contract to erect these works; but by a subcontractor...." n346
The Court held that the subcontractor did not "stand ... in [a] position ... to take advantage of the unconstitutionality of [the] law" because "it has an action against the Gas and Fuel Company, which is presumed at least to be able to respond in damages for all such as plaintiff may have suffered by the interruption of the contract...." n347 Thus [*1434] Davis was not a case of "standing" in which the Court viewed the plaintiff as having no personal interest in the outcome of the dispute.
Conceptually, Davis held that the subcontractor could not use a part-whole schema or a link schema to invoke the "personal" claim of the general contractor. The subcontractor's complaint, after all, was that the municipal ordinance affected everyone in the chain extending from the land owner, to the general contractor, through it (as an intermediate link), to its own employees. The Court said that the subcontractor could not invoke the joint interest of the whole chain. The subcontractor would have to deal with the other link, the general contractor, on its own.
Doctrinally, the lower federal courts interpreted Davis as concerning the scope of the equity jurisdiction of the federal courts. n348 Two other equity cases, frequently cited in modern standing opinions, illustrate this equitable, rather than constitutional, origin of the link between jurisdiction and adequacy of one's personal interest: McCabe v. Atchison, Topeka & Santa Fe Railway Co. n349 and Truax v. Raich. n350
In McCabe, five black persons sued to enjoin compliance by five railroads with the terms of a post-Plessy v. Ferguson n351 Oklahoma statute. The statute explicitly required that railroad provide separate but equal facilities. But it allowed one-race sleeping, dining, and chair cars without providing such "luxury" accommodations to the other race. The district court upheld the statute. The Court questioned that part of the statute which deviated from the separate-but-equal doctrine, rejecting the state Attorney General's argument that the railroads experienced insufficient demand for services to justify all-black sleeping, dining, and chair cars. n352 "It makes the constitutional right depend upon the number of persons who may be discriminated against, whereas the essence of the constitutional right is that it is a personal one." n353
The Court nevertheless affirmed. Citing Davis and Tyler, the Court [*1435] held that plaintiffs were not entitled to equitable relief. It reasoned that, in order to justify such relief, the plaintiffs must demonstrate personal injury, n354 and there must be no adequate remedy at law. n355 The concluding passage of the opinion reveals that the Court was considering traditional rules of equity, not constitutional or prudential rules of "standing":
Nor is there anything to show that in case any of these complainants offers himself as a passenger on any of these roads and is refused accommodation equal to those afforded to others on a like journey, he will not have an adequate remedy at law. The desire to obtain a sweeping injunction cannot be accepted as a substitute for compliance with the general rule that the complainant must present facts sufficient to show that his individual need requires the remedy for which he asks. n356
In Truax, decided a year after McCabe, the Court revealed the flip side of an equitable, nonconstitutional analysis that depended on the directness of the plaintiff's interest. Mr. Raich, who was from Austria, was a cook in Mr. Truax's restaurant. Arizona passed a statute requiring that at least 80 percent of a business' employees be Americans. Mr. Truax informed Mr. Raich of his intention to discharge Raich because of the statute. Mr. Raich subsequently brought an action in equity to declare the statute unconstitutional and enjoin its enforcement. n357 The state argued that the employer was subject to criminal prosecution, not Mr. Raich, and that therefore Raich could not sue to present the employer's complaint. n358 The Court rejected the argument, premised on McCabe, that "the complainant cannot sue save to redress his own grievance...." n359 It noted that "the discharge of the complainant will be solely for the purpose of meeting of the requirements of the act and avoiding threatened prosecution.... It is, therefore, idle to call the injury indirect or remote." n360 The Court added that Mr. Raich had no adequate remedy at law, concluding, "that the case falls within the class in which, if the unconstitutionality of the act is shown, equitable relief [*1436] may be had." n361
Taken together, McCabe and Truax illustrate the equitable source of the modern doctrines of injury-in-fact and of prudential avoidance of constitutional decisions. These cases concerned traditional rules of equity about the limits of its jurisdiction: Equity acted only when necessary; equity grew out of the discretion of the chancellor to determine which interests were sufficiently important to justify the invocation of a coercive, in personam, remedial power rooted in a concern for justice. n362 These doctrines, and not article III specifications about the sufficiency of the litigant's interest, dominated the discourse when the Court subsequently dealt with the question of citizen and taxpayer "standing."
The significance of cases like Tyler, Davis, McCabe, and Truax to the development of constitutional standing, however, was not doctrinal. Rather, these cases were important because they rejected the underlying representational model of the previous century in favor of a model that was strictly individualist. Only Mr. Raich's claim could be maintained because his was not dependent on a representational schema. Mr. Raich's claim was consistent with the causal source-path-goal metaphor. The Court noted that the purpose of the act was directed at aliens such as Mr. Raich and that the path was neither circuitous nor attenuated. n363 On the other hand, Mr. Tyler's link to other members of the community no longer sufficed to justify his invocation of the concerns of other parts of "the great body of his fellow citizens." n364 The fact that Mr. McCabe was challenging the actions of a public carrier on behalf of all black passengers no longer sufficed as in Hall; the fact that the subcontractor in Davis was an intermediate link in the chain affected by the municipal ordinance was no longer relevant. The Court disapproved the representational submodels premised on link and part-whole schemata and these links between individuals were severed. Yet, the public rights submodels with simpler part-whole schemata, that is, the representational model in which the whole acted for the parts, and the constituent model in which one part acted for the entity itself remained intact until the next decade.
C. States' Rights, Private Rights, and Public Rights
The Court invoked the private rights model in the 1860s to block the attempts by southern states to challenge the Reconstruction program. Professor Monaghan cited this invocation as the clearest demonstration of the limitation of article III jurisdiction to "concrete 'private [*1437] rights.'" n365 However, Monaghan's analysis is distorted by hindsight. In the 1860s, the Court did not apply the private rights model as an alternative to the intermediate public rights model, but rather as an alternative to viewing certain matters as nonjusticiable "political questions." Indeed, the Court vacillated for decades on the issue of whether states could invoke the public rights model on behalf of their citizens.
In Georgia v. Stanton, n366 the state filed an original bill in equity, asking the Court to restrain the execution of the original Reconstruction Acts setting up military governments in the southern states. The Attorney General argued against jurisdiction on the grounds, inter alia, that the case presented a political question, was premature, and that the alleged harm was speculative. n367 The state argued that equity jurisdiction was proper: "Much has been said about all the evil alleged in the bill being contingent and future.... The fact is quite otherwise. A bill quia timet is one of the very heads of equity jurisdiction." n368 Georgia took the position that the case was justiciable because it fell within the familiar forms. n369
The Court conceded that it had a "case" before it that appeared, in form, to fall under equity jurisdiction, but agreed with the Attorney General that the case was political and nonjusticiable:" [I]n order to entitle the party to the [equitable] remedy ... the rights in danger ... must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity." n370
Florida v. Anderson, n371 decided seven years later, reads like an assertion of the private rights model. The majority opinion even expresses the jurisdictional question in terms of "a standing in court." n372 Anderson was an original bill in equity instituted by the Florida Attorney General on behalf of the state and the trustees of its internal improvement trust fund. The suit sought to protect a statutory lien on some railroad property by setting aside a prior judgment foreclosing on the property [*1438] and by invalidating the subsequent sale of the railroad. n373 The defendants challenged the Court's jurisdiction on the ground that only the trustees were proper party plaintiffs, and that the trustees could not invoke the original jurisdiction of the Court. The Court held that the state was the real party in interest and, thus, could invoke the Court's original jurisdiction. n374
In Anderson, as in Stanton, the Court defined its equity jurisdiction in terms of the private rights model's focus on property rights. n375 In Anderson, the issue was whether the state's interest was sufficiently direct to invoke the extraordinary equity power to set aside judgments and invalidate sales. It was solely in this sense that the Court asked whether the state had "a direct interest in the ... controversy ... as to give it a standing in court." n376 The use of the term "standing" did not address the constitutional impermissibility of asserting public rights in the absence of private injury. The Court, which endorsed the public rights model in Hall the same Term that it decided Anderson, is unlikely to have intended to reject in Anderson what it had just approved in Hall. n377
Indeed, Anderson appears to have had no direct impact on the later development of the doctrine of standing. The only time the Court cited Anderson was in the companion case to Frothingham, Massachusetts v. Mellon. n378 In its discussion of the political question doctrine, the Court cited Anderson as an example of the kinds of justiciable questions that a state may raise. n379 The Court did not cite Anderson as an example of an [*1439] article III limitation to the private rights model in its consideration of the sufficiency of the plaintiff's interest in Frothingham.
Subsequent to Anderson, the Court invoked the public rights model in a similar federal context in Debs. n380 For the next half century, the Court vacillated over the permissibility of state invocation of the public rights model. The first Justice Harlan argued frequently for the private rights model as a "case or controversy" limitation on suits brought by the states; n381 Justice H