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29 Wm. & Mary Bill Rts. J. 67 (2020-2021)
The Nature of Standing

handle is hein.journals/wmbrts29 and id is 77 raw text is: THE NATURE OF STANDING Matthew Hall and Christian Turner* INTRODUCTION Most academic studies of standing have focused on restrictions on federal court jurisdiction drawn from Article III of the U.S. Constitution and related doctrinal schemes developed by state courts. These rules are constructed atop a few words of the Constitution: The judicial Power shall extend to all Cases, in Law and Equity, arising under various circumstances.' The Supreme Court has interpreted these words to require federal courts to assess whether a plaintiff has suffered an injury in fact that is both fairly traceable to the actions of the defendant and redressable by a favorable ruling before proceeding to the merits of a case.' States, however, are not limited by Article III's grant of the federal judicial power, and many have developed versions of standing that differ from federal doctrine.' Al- though every state has a standing doctrine of some sort, state courts often impose looser requirements for standing than do the federal courts.4 And even in federal courts, there are fault lines in various areas of the doctrine.' Although Article III justiciability doctrines are described as jurisdictional in nature, numerous exceptions challenge the usual doctrinal model.6 We propose to understand these doctrinal differences and the related jurisdic- tional controversies through a far broader conception of standing, expressed in basic institutional mechanics and context-specific cooperative goals. Rather than focusing minutely on standing as an idiosyncratic jurisdictional and prudential doctrine, we aim to analyze its place in the larger world of agenda-control rules-that is, rules that * Associate Professors, University of Georgia School of Law. ' U.S. CONST. art. III, § 2, cl. 1. While this provision is often called the Case or Contro- versy Clause, the word Cases is used to refer to disputes arising under federal law, treaties, and admiralty and between ambassadors and other public ministers. Robert J. Pushaw, Jr., Article III's Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 NOTRE DAME L. REV. 447, 447-50 (1994). Controversies is used separately to refer to di- versity cases and certain cases involving the states and the federal government. See id. While justiciability and jurisdictional doctrines assign no significance to this fact, Robert Pushaw has argued that 18th century practice reveals an expectation that courts would declare legal obli- gations in cases and act as non-precedential arbitrators of disputes in controversies. Id. 2 See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). 3 Helen Hershkoff, State Courts and the Passive Virtues: Rethinking the Judicial Func- tion, 114 HARV. L. REv. 1833, 1836, 1838 (2001). ' See, e.g., ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989). 5 See, e.g., William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 223 (1988). 6 See infra Part I. 67

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