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.
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