VI. RECONSTITUTING STANDING

 

VI. RECONSTITUTING STANDING

Before it can adopt a positive voice, freedom requires an effort at disalienation. n590

 [*1479]  What would reconceptualized models of standing look like? What attitudes should shape participation in a legal system not dominated by the current metaphor? I suggest that, if we are to reconstitute standing doctrine in the public law context, we should choose rules that are reconstitutive rather than alienating. We could start with five propositions.

First, the Framers did not write a Constitution for, and did not envision a society consisting of, "a collection of portable little spheres of interest in which you and I and [others] plunge about like swimmers in so many diving bells." n591 Their society was not organized that way; modern society isn't either. Each of us lives within interactive webs of interests. Each of us belongs to numerous communities: the part-whole configurations that, like concentric rings, comprise the varying relationships of our lives: We are husbands and wives, parents and children, employers and employees, professionals and clients, as well as members of extended families, unions, professional organizations, political parties, and other citizenship groups.

Second, we ordinarily expect those who share our interests and our trust — whether intimate, professional, or political — to speak up for us. We feel betrayed when our family, friends, or professional colleagues do not stand up for us. The political premise of our democracy is that it is representative in character. n592 This communitarian assumption is no less characteristic of our practice of judicial review, in which the Court decides rules and principles that govern us all and not just the litigants before it. n593 That universality is one reason for the continued validity  [*1480]  of de Tocqueville's classic observation: "Scarcely any political question arises in the United States that is not resolved sooner or later, into a judicial question." n594

Third, society establishes rights in order to protect particular interests through the medium of laws. The prototypical right is effectuated by a remedial scheme that involves coercive judicial remedies obtained by the injured individual. But not all rights fit a single mold. Sometimes the interests that society chooses to protect are shared by a community. Sometimes the correlative enforcement mechanism relies on the normative sanctions that can be brought to bear upon the wrongdoer, such as impeachment, political defeat, or public opprobrium. But all of these normative sanctions depend on access to some public forum. Public rights require a public forum, even if only to require the court to be sure that other kinds of remedies are available and appropriate. n595

Fourth, the problems that arise from representation are only instrumental — that is, only practical problems. Standing law, premised as it is on individualism, posits otherwise, that there is a fundamental, normative requirement that rights are personal in nature. But there is nothing inherently wrong with allowing A to represent the interests of B. To the contrary, there are occasions when such representation is desirable or necessary. There are risks to representation, to be sure: The representative may act against or in ways inimical to the represented party's real interests. Accordingly, we make choices or impose limits. We weigh the instrumental benefits as well as the costs. We require representation at certain times n596 and prohibit it at others. n597 We impose fiduciary obligations or carve structural limitations. n598 But these are instrumental considerations that present choices to be made, not  [*1481]  moral evils pretermitted by a priori philosophic or constitutional limitations.

Fifth, any particular regime governing participation imposes institutional costs and benefits. The current standing regime obfuscates the actual costs and exaggerates the benefits. n599 The institutional constraints that we should treat as embodied in a "case or controversy" notion are implicated much more rarely than is suggested by current doctrine. This argument involves two elements: (1) that courts are better suited, more necessary, and more frequently employed as fora for debate over and enforcement of societal norms than the prevailing constitutional wisdom suggests; and (2) that the threat to democratic values stems from the loss of democratic control over decisions about access to and involvement in that judicial process as much as from the courts' normative work. Current standing law obfuscates the instrumental value of the rule of law in a functioning democratic system and the imperialism of an unaccountable judiciary that acts as both lawgiver and gatekeeper. n600

I explore these principles in the four subsections that follow. In the first, I explore, in the context of recent cases, the ways that the Court has had to manipulate its own doctrine in order to permit representative public litigation inconsistent with its individualistic ideology of standing. In the second subsection, I explain why a multiplicity of metaphors better structures meaningful responses to a multidimensional reality. I develop the advantages of a system that is not restricted to a single model or metaphor. I illustrate this point with alternative models and metaphors that do a better job of recognizing rights and providing meaningful remedies in a society characterized by interdependence. In the third subsection, I consider how the Court's manipulation of these metaphors undermines self-governance. In the final subsection, I suggest how alternative models might better enable us to harmonize the processes of adjudication with notions of democratic governance.

A. Testing and Transcending the Paradigm

One measure of the individualistic paradigm of modern standing law is the Court's success in employing this paradigm to police the  [*1482]  boundaries of adjudication consistent with society's felt needs. The Court has found it necessary to distort the paradigm — sometimes beyond recognition — in order meaningfully to accommodate societal needs for adjudication in situations in which individualism simply fails to capture the more complex dynamics of lived, social experience. This discussion will demonstrate again that the standing paradigm does not work. The primary purpose of this discussion, however, is to discover what is needed to replace it.

In Trafficante v. Metropolitan Life Insurance Company, n601 one white and one black person sued under the Federal Fair Housing Act n602 as "persons aggrieved" by their landlord's refusal to rent to other, nonwhite applicants. The lower federal courts held that the plaintiffs were not entitled to sue under the Act. n603 The Supreme Court reversed. The majority found standing based on the allegation that the "injury to existing tenants by exclusion of minority persons from the apartment complex is the loss of important benefits from interracial association." n604 This characterization restructured the issue in individualistic terms: The plaintiffs suffered a loss in "the very quality of their daily lives." n605 But the Court did not stop there. It also considered the congressional grant of a right to sue on two alternative bases not rooted in the plaintiffs' special injury. It considered that the scheme created by the Act relied heavily, if not exclusively, on private attorneys general for enforcement. n606 And it quoted Senator Javits' observation that the injury of housing discrimination is to "the whole community." n607

No part of the Court's rationale fits the paradigm of standing. After all, the Act prohibited discrimination, not the enforced segregation of whites. The Court's reformulation emphasized the interests of collateral beneficiaries over those of the persons who were actually discriminated against, in contrast to its usual treatment of the right to be free of discrimination as a personal right. n608 Moreover, even the personal right the Court did construct was premised on the benefits of community. The Court's opinion moved inexorably, therefore, to the broader implications of the congressional grant of representational standing to vindicate the concerns of the community.

Nevertheless, Trafficante's treatment of these issues has remained characteristic. Constrained by the individualist ideology, the Court has  [*1483]  continued to find novel, "personal," congressionally created rights in order to solve problematic cases of representative standing. And, at times, this focus upon personal rights has resulted in anomalous holdings. In a subsequent housing discrimination case, Havens Realty Corp. v. Coleman, n609 the Court held that, of two otherwise similarly situated surrogates, only the black plaintiff had standing to pursue a claim intended to benefit third parties subject to discrimination.

"Steering" by real estate and rental agents is a common practice of racial exclusion. Typically, real estate agents lie to black applicants for apartments or homes in traditionally white neighborhoods, telling them that an advertised unit is no longer available. The agents then take the black applicants to see an apartment or a house in a black or transitional neighborhood. To prohibit this practice, section 804(d) of the Act makes it illegal "[t]o represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available ... when such dwelling is in fact so available...." n610 But genuine housing applicants who are victims of this practice rarely know when they have been lied to. Accordingly, the only meaningful way to enforce the Act is to employ surrogate "testers": people who pose as renters or purchasers. White and black testers separately answer an advertisement for the same apartment or home in a white neighborhood. If the black is told that the unit has already been sold or rented and the white is shown the unit, then a violation of the Act has been proved. But, because neither of the testers has an actual interest in the unit, there is a question whether either has standing. That is, neither has suffered an injury-in-fact.

In Havens Realty, the Court upheld the standing of the black tester but denied standing to the white tester. n611 The Court started from the premise that Congress has the power to extend standing "to the full limits of Art. III" n612 and that, if Congress does so, "the courts ... lack the authority to create prudential barriers...." n613 Accordingly, "the Art. III minima of injury in fact" was "the sole requirement for standing." n614 The Court found that injury in the deprivation of the "enforceable right to truthful information" created by section 804(d). n615 Thus, only the black tester had standing because only he had been given false information. n616 Yet the white tester had the same relationship to the case and the same purely representational relationship to the real beneficiaries of the statute (seekers of housing who encounter  [*1484]  discrimination) as did the black tester. The black and the white tester were as alike as two peas in a representational pod, but the Court managed to discriminate between them nevertheless.

Singleton v. Wulff n617 even better illustrates the Court's continuing struggle with the notion of group rights in the context of an individualist ideology. In Singleton, doctors challenged the statutory exclusion of most abortions from coverage under Medicaid. n618 A unanimous Court agreed that the doctors had standing because they had suffered injury-in-fact when they were denied the only source of compensation for medical services performed for indigents. n619 The Court split, however, on the question of jus tertii: whether the doctors could raise their patients' constitutional right to obtain an abortion. Justice Blackmun's plurality opinion upheld third-party standing. n620 The plurality relied on purely instrumentalist considerations that made representation necessary and reliable. First, it noted the inextricable connection between the third party's enjoyment of her right and the course of conduct that the doctor-litigant sought to pursue, n621 the confidential n622 and intimate n623 nature of the doctor/patient relationship, and the resulting fact that the doctors were "fully, or very nearly, as effective a proponent of the right as the" patient. n624 Second, the plurality considered the practical obstacles to the woman's assertion of her own rights, including the loss of privacy entailed in a decision to litigate the abortion claim publicly and the imminent mootness of her claim. n625

But, writing for the dissenters, Justice Powell argued that the plurality had inverted "the Court's previous position that the relationship between litigant and rightholder was subordinate in importance to 'the impact of the litigation on the third-party interests.'" n626 In his view, the Court's prior decisions demanded greater practical impediments to justify third-party standing; he also argued that the plurality had overstated the obstacles to the indigent women's assertion of their own rights. n627 The problem of potential mootness was refuted by the "capable  [*1485]  of repetition yet evading review" doctrine exemplified by Roe v. Wade. n628 The ability of the litigant to sue under a pseudonym mooted the privacy point. n629 Justice Powell therefore accounted for the inversion as a concession of the weakness of the plurality's instrumentalist arguments for third-party standing. Moreover, because he saw the question as only instrumental, Justice Powell argued that the nature of the relationship was only a secondary safeguard to assure adequate representation. n630 According to Justice Powell's view, representation was adequate only when the state directly interfered with the doctor/patient relationship, as when it criminalized the underlying medical procedure. Here, in contrast, "nothing more [wa]s at stake than remuneration for professional services." n631

Despite the fact that the plurality retained the instrumentalist focus on adequate representation, Singleton is significant far beyond the refinements of doctrine that seem to separate the plurality from the dissenters. Singleton's treatment of the relative importance of the nature of the relationship and of the difficulty of the obstacles, and its inversion of the criteria, suggest the possibility of two fundamental shifts in the ideology of standing. n632

First, reliance on the instrumentalist necessity of representation as the only justification for third-party standing gives way to a concept of shared interests or relational standing. This is the true import of the plurality's discussion of the confidential and intimate nature of the relationship. The doctor/patient relationship — particularly with respect to a highly personal decision like contraception or abortion "in which the physician is intimately involved" n633 — is a paradigmatic relationship of trust. In this relationship of reliance and vulnerability, social mores already impose — or, at least, expect — duties of confidentiality, loyalty, and fiduciary obligation. This special relationship makes Singleton the easy case compared to those of self-appointed contraception advocates n634 or buyers and sellers of real property n635 relied upon by both the plurality and the dissent. In contrast, the dissent's blighted vision saw only an extension from one form of third-party self-interest (avoidance  [*1486]  of criminal sanction) to another, weaker form (mere pecuniary gain); from a direct prohibition on the relationship, to a mere economic inconvenience. n636

Second, Singleton suggests a fundamental shift away from an understanding of representation as a grudging exception to an appreciation of its ubiquity. Contrary to Justice Powell's critique, Justice Blackmun's plurality opinion openly acknowledged the pliability of the "obstacles" to the women's own pursuit of their cases. It even suggested another available exception to mootness (in addition to the example of Roe v. Wade): "a class ... whose fluid membership always included some women with live claims." n637 To the plurality, these arguments counseled in favor, rather than against, third-party standing because both doctrines already implied the acceptability and normalcy of third-party representation: "[I]f the assertion of the right is to be 'representative' to such an extent anyway, there seems little loss...." n638

The Court continued this debate four years later in United States Parole Commission v. Geraghty n639 and Deposit Guaranty National Bank v. Roper. n640 In these cases, plaintiffs who had failed to obtain class certification continued to pursue their cases even after their individual claims were resolved. In Geraghty, the named plaintiff's case was moot by the time an appeal from final judgment could test the class issue. n641 In Roper, the named plaintiffs' individual claims had been subject to an offer of judgment for the full amount. The district court entered judgment in favor of the plaintiffs, who nevertheless appealed the denial of class certification. n642

In each case, while the majority opinion talked in terms of procedural doctrines such as finality of judgments, n643 relation back, n644 and the doctrine of mootness-avoidance known as "capable of repetition yet  [*1487]  evading review," n645 the dissent found no "case or controversy." But the majority clearly stumbled on the article III issue. It recounted the individualist dogma of standing and struggled to fit the case to that mold: "The imperatives of a dispute capable of judicial resolution are sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions." n646 In both Geraghty and Roper, the Court could avoid dissonance only by using the Trafficante sleight of hand. That is, the Court found that Congress had created a personal right to obtain class status, to be invoked by the putative class representative, when it passed Rule 23 of the Federal Rules of Civil Procedure. n647 Once that right was recognized, the injury-in-fact and personal stake conundra could be solved: "The proposed representative retains a 'personal stake' in obtaining class certification sufficient to assure that Art. III values are not undermined." n648

This "personal stake" in serving as a class representative is a fiction just as great as those invented by the Court in Trafficante and Havens Realty. The plaintiffs and putative class representatives in both Geraghty and Roper had exhausted all of their self-interest. n649 As in Trafficante or Havens Realty, the plaintiffs were acting, not for themselves, but for  [*1488]  other, absent victims of the primary illegality. But the reformulated "personal stake" of the representative was an even greater fiction in Geraghty and Roper. For the Court derived the "personal right" to serve as a class representative not from a substantive statute like the Fair Housing Act, but from Rule 23, a procedural rule. And, that "personal right" was ephemeral in the extreme: Everyone agreed that once the appeal had been taken and the class certified, the "proposed class representative" would be dismissed on typicality grounds. n650

To defend its treatment of justiciability under article III, the Geraghty majority abandoned any notion of formal restraint, such as that usually ascribed to standing. Instead, it characterized justiciability doctrine as "flexible," n651 "uncertain and shifting," n652 "riddled with exceptions," n653 and highly pragmatic. n654 Indeed, the Geraghty majority conceded partial, conceptual defeat:

The dissent is correct that once exceptions are made to the formalistic interpretation of Art. III, principled distinctions and bright lines become more difficult to draw. We do not attempt to predict how far down the road the Court eventually will go toward premising jurisdiction "upon the bare existence of a sharply presented issue in a concrete and vigorously argued case." n655

Thus, cases like Geraghty do not fit the doctrinal categories of standing and the presumed exclusivity of the private rights model. These cases test the paradigm and find it wanting. To make the model meet society's needs, the Court is forced to indulge in fictions.

So what? If the Court can do it all the same, what does it matter? It matters. It matters because the use of fictions produces a body of case law that is thrice removed from reality. First, the Court ascribes to Congress the creation of "rights" that, doubtless, Congress never considered. The doctrine produces a series of anomalies, not the least of which is that Congress has the power to create rights exactly where the Framers did not. Thus, cases like Trafficante, Havens Realty, and Geraghty recognize new rights, "the invasion of which creates standing"; n656 yet the Court rejects precisely that syllogism in cases like Valley Forge, n657  [*1489]  Schlesinger, n658 and Richardson. n659

Second, it matters if the Court uses fictions to avoid existing standing doctrine because such fictions focus the rhetoric and, consequently, the Court's attention on the wrong people and the wrong things. That is, our ingenuity is engaged in finding "rights" granted to third-party surrogates when we should be concentrating on the problems of the real victims of the prohibited practice. We inevitably undervalue the suffering of these victims and, as a result, are less able adequately to respond to that suffering. n660 For example, focusing on the black tester's personal right to truthful information, rather than on his or her capacity as representative of the actual victims, limits the remedies available in a tester's suit to those coextensive with the newly-defined "right." Thus, damages will be available to remedy the provision of false information. But, under City of Los Angeles v. Lyons, n661 the tester will not have standing to obtain an injunction against the practice.

In Lyons, the Court held that Adolph Lyons, a victim of a police chokehold, could seek only personal damages. The Court held that he did not have standing to enjoin the practice because, in its view, it was speculative that Mr. Lyons would again be subjected to the chokehold. But if the Court viewed the tester — or Adolph Lyons — as representative of the legal interests of absent victims, then these plaintiffs' "standing" to obtain injunctive relief on behalf of the absent victims would follow logically. Once again, the putatively jurisdictional question of "standing" is in fact several questions: Who has rights? What are they? And how can they best be effectuated?

Third, standing law distorts the very issues and values that it purports to vindicate. Standing law is frequently defended as assuring adequate representation to insure vigorous advocacy or protecting the autonomy and self-determination of the interested parties. n662 In many cases, however, standing law does just the opposite. In Burstyn v. Miami Beach, n663 several plaintiffs joined in a suit challenging a local zoning ordinance that limited the number of Adult Congregate Living Facilities ("ACLFs"), community-based alternatives to nursing homes or  [*1490]  hospital care for elderly persons. The plaintiffs claimed that there were many more elderly persons than there were facilities to serve their needs. The case focused on two buildings that the owners wanted to convert to ACLFs. The plaintiffs included the state ombudsman council, two senior citizen groups, and one notorious ACLF proprietor who had been cited numerous times for abuses and violations by various state agencies. The district court held that only the proprietor had standing. The district court faithfully tracked the Court's holding in Warth v. Seldin, n664 a case concerning a racial challenge to exclusionary zoning practices.

The significance of cases like Trafficante, Singleton, and Geraghty is not that they test the individualist paradigm of standing, but that they transcend it. These cases covertly reestablish the part-whole and link schemata that typified the public rights model. Trafficante concerned the legal recognition of interests in community; Singleton concerned relational interests; Geraghty concerned the instrumental value of representation.

Each of these cases can be better reconstructed in terms of one of the historical public rights models. Trafficante and Havens Realty, for example, become simple cases of representative, private attorney general standing, with congressional authorization to sue applied to all persons with relevant information. These cases become no more difficult than Adams, qui tam v. Woods, n665 in which Congress authorized informers' suits against slave traders. Geraghty and Lyons become no more difficult than County Commissioners v. People ex rel. Metz n666 or Union Pacific Railroad v. Hall, n667 in which the courts held that members of the public could sue in mandamus when "the duty they seek to enforce by the writ is a duty to the public generally." n668

The public rights approach was referred to in Singleton, n669 hinted at (but not relied on) in Geraghty, n670 and all but adopted in Justice Stevens' concurring opinion in Roper. He put it plainly: "[T]he absent members of the class should be considered parties to the case or controversy...." n671 In each of these cases — Trafficante, Havens Realty, Geraghty, and  [*1491]  Lyons — the real plaintiffs were the members of some absent group.

The area in which the courts have come closest to achieving this reconstituted public rights model is the one in which the communal stakes are most obvious: the environmental cases. This is the answer to the particularization conundrum raised in the introduction. It is not that some rights are "personal" and others "group" rights. Rather, it is that the courts can most easily see the widely shared "personal" stake in fresh air, n672 clean parks, n673 and unspoiled wilderness areas n674 because these are things we experience directly as individuals even as we share them in common with society.

In all of these cases, there is a "case or controversy" because there is a real, adversary issue presented in a concrete factual setting turning on questions of law. In each case, the nominal plaintiff was in fact acting for the group in a representative capacity without regard to his or her self-interest. Justice Blackmun's observation in Singleton concerning the normalcy of such representation is equally apt here: Since the assertion of rights is so often representative in our system "there seems [to be] little loss...." n675 There may, in fact, be substantial gain.

B. Meaning and Multiplicity of Metaphors

We have seen how metaphors and models are central to human cognitive  [*1492]  processes and how they operate to structure thought. n676 We have seen, as well, how they sometimes disorder our legal thinking in surprising ways. n677 In this section, we consider again the role of metaphor in language and thought in order to further the project of reconstruction. We will examine three important aspects of the operation of metaphor in thought. We will explore why it is always necessary to employ multiple metaphors to establish meaning, describe the variety of types of metaphor, and inspect the connection between purpose and metaphor. n678

Suppose that we are standing by the ocean on a windless day. We might describe the sea as calm or flat. If it were a windy day, we might remark on the whitecaps or say that the sea was hoary or that the waves were rushing toward the shore. Each of these descriptions employs metaphor, although some so common we no longer perceive them as such. Each metaphor tells us something about the ocean. At the same time, each metaphor is partial and incomplete; it hides or negates other truths about the ocean. Even when a particular metaphor may be appropriate, it nevertheless hides other important aspects of the sea. The waves may appear to rush toward the shore and may, as any surfer knows, propel objects in that direction. But we also know — as we watch a discarded paper cup bob in place — that the water actually moves in place in a circular motion. The surface of the sea may appear flat, but beneath the surface is a reality of valleys, ridges, trenches, and the like. While the surface may appear calm, there also may be a deadly current underneath. We would use another metaphor to describe that part of the sea's reality: We call it the undertow — as if some underwater tug had fastened a tow line about our ankles with which to drag us out to sea.

We experience reality like the ocean. We structure our perception of it by means of metaphors, models, concepts, and categories. Each metaphor takes a slice of reality and compares that cross section with some aspect of our physical experience. These basic orientational n679 and ontological metaphors n680 are then combined and recombined to  [*1493]  form more descriptive structural metaphors. n681 These in turn are used to form cognitive models or concepts. n682 We use multiple metaphors — repeated cross sections or multiple snapshots — in order to capture more of what we experience and construct a more useful picture of the reality around us. We construct complex models of various sorts and use metaphoric extensions to reason about the world. This layering of metaphors and of models enables us to achieve meaning.

Part of the process of achieving meaning stems from the varieties of metaphor. The two metaphors invoked above — the ocean is flat and the ocean is calm — are of differential usefulness in structuring the concept "Ocean." The first metaphor, premised on the basic, ontological object metaphor, is of limited usefulness: The ocean can be flat because it has a surface; it must have a bottom and edges. On the other hand, the second metaphor — the ocean is calm — is premised on the much richer personification metaphor. Thus, the ocean can be calm, treacherous, unforgiving, moody, a demanding mistress, or a stern taskmaster; the tide can come in and go out. n683 Similarly, the sea can have the specific attributes of personhood of the English working class sailor, as in the personification metaphor: Davy Jones' locker.

Metaphors based on simple physical concepts — up-down, in-out, object, substance, etc. — which are as basic as anything in our conceptual system and without which we could not function in the world — could not reason or communicate — are not themselves very rich. To say that something is viewed as a container object with an in-out orientation does not say very much about it. But, as ... with the mind is a machine metaphor and the various personification metaphors, we can elaborate spatialization metaphors in much more specific terms. This allows us not only to elaborate a concept (like the mind) in considerable detail but also to find appropriate means for highlighting some aspects of it and hiding others. Structural metaphors (such as rational argument is war) provide the richest source of such elaboration. Structural metaphors allow us to do much more than just orient concepts, refer to them, or quantify them, as we do with simple orientational and ontological metaphors; they allow us, in addition, to use one highly structured and clearly delineated concept to structure another. n684

The more important the concept the more likely that the concept is structured in terms of many different and richer, structural metaphors. Lakoff and Johnson identify at least five standard metaphors that our culture uses to understand and describe the concept "love," n685 and at  [*1494]  least eleven for the concept "idea." n686 In the latter case, each of these structural metaphors is based on one of two more basic ontological metaphors, ideas are objects or ideas are living organisms. Some examples of standard metaphors for the concept of "idea" follow.

Ideas (theories) are buildings: The argument is shaky; it needs more support; these are the building blocks of my theory.

Ideas are food: I can't swallow that metaphor theory; let me chew on it a while; he spits out ideas.

Ideas are people: That's her brainchild; he breathed new life into that idea.

Ideas are plants: The roots of this theory lie in the work of Sapir and Whorf; that idea has borne fruit; let me plant this thought. n687

We establish truth by testing metaphors and their combinations against our experience for functionality. Truth (or relative objectivity) is both contingent on our metaphors and provisional on our experience. Since individual metaphors are inherently limiting, we modify them, reject them, or supplement them in order to achieve a better, more effective "fit" in our interaction with "reality." n688

The value of this metaphoric theory of meaning is that it provides an elegant explanation of some otherwise unaccountable phenomenon. In the context of the law of standing, this theory can help bring a measure of coherence to otherwise unanswerable doctrinal difficulties. By examining the role that the standard cultural metaphors play in shaping our thinking, we can answer the injury conundrum raised in the introduction. n689 And  [*1495]  by examining the relationship between purpose and the use of multiple models, we can see both why standing law is naturally dysfunctional and how we could begin to reconstruct it.

Two of the related conundra of standing law that we have examined are the effects of the injury-in-fact analysis and the scope of congressional power to create standing. In Schlesinger, n690 the Court struggled with the notion that a conflict of interest, that is, the threat of a breach of fiduciary duty, could constitute an injury-in-fact. n691 The Court suggested that Congress could enact a conflict of interest statute, but that standing to enforce such a statute would nevertheless have to be premised on actual injury. n692 In Richardson, plaintiffs could not enforce a constitutional provision granting a right to public information because no one had suffered specialized injury. n693 But in Havens Realty, a similar congressional grant of a right to accurate information did serve as the basis of standing because the deprivation of that right was the injury-in-fact. n694

This conflict between the dicta in Schlesinger, in one case, and between the holdings in Richardson and Havens Realty, in another, suggests two problems that only the concept of metaphors and models can explain. First, why is it that the right to information granted by the Fair Housing Act ("FHA") n695 or the Freedom of Information Act ("FOIA"), n696 for example, can give rise to standing, while the same right granted by the statement and account clause cannot? The notion of "standing" suggests that the answer lies in the metaphor of individualism. The FHA and the FOIA directly address individual persons who ask for information. n697 The statement and account clause, on the other hand, delineates what Congress may do. The connection between that  [*1496]  clause and the complaining individual is twice derivative: Congress is accountable to the citizenry at large; the plaintiff is only one of many indistinguishable citizens.

The FHA and the FOIA organize our perception of the right to information of the bipolar private rights model and the source-path-goal schema. The plaintiff is the source of the request, which is a physical thing he or she makes n698 and delivers to the defendant. The remedial source-path-goal metaphor moves that information from the governmental source to its goal: the citizen. The imagery of the statement and account clause, in contrast, is communal, not individualistic. The clause talks of drawing from the public treasury (as if from the communal well) and of publishing (from the same root as public) an account. This communal well metaphor does not cohere with the remedial source-path-goal metaphor of the private rights model. The relationship of the claimant in Richardson to the process, however, is not different in any meaningful sense from that of the FOIA plaintiff. It is only that we see the relationship differently.

But, how does this explanation address the injury-in-fact conundrum? Why can Congress say that the FHA tester or FOIA plaintiff has standing to enforce a right to obtain information even if he or she has by definition suffered no actual injury as a result of the withholding of that information? If the deprivation of the right is itself the injury-in-fact, then what of the hypothetical conflict of interest statute mentioned in Schlesinger or the plaintiffs in Valley Forge? In those cases, the Court seemed to be saying that real injury-in-fact is an irreducible constitutional requirement for standing, even when there is congressional specification of a right and authorization to sue to enforce it.

The answer lies in the way we use metaphor to think about information. Ideas are conceptualized by means of the ontological metaphor ideas are objects. In our legal system, the denial of an object that someone is entitled to receive is a classic injury: When real physical objects are involved, denial is a deprivation of property. n699 Thus, we perceive the denial of information as an injury-in-fact. n700 But a conflict of interest is a state, and it is a state that pertains to some person other than the plaintiff. Because a conflict is not conceptualized via the object metaphor,  [*1497]  it is not a thing that can be denied. For a conflict to be actionable, there must first be a consequential, objective injury.

There is a necessary relationship between variable human purpose and our ability to fashion and deploy multiple models in order to interact successfully with our environment. For example, there are many ways to conceptualize the planet we live on; each of these models works quite well for specific purposes. Thus, the idea that the earth is flat works perfectly well if I want to navigate from my house to the law school; a simple, two dimensional model — a road map — will suffice. But for other purposes, the two dimensional model would be entirely misleading. Once I estimated the time it would take me to travel from a small town near Santander to Santiago de Compostela on the north coast of Spain. I computed the distance on the map and figured the average speed the bus would make. When I boarded the bus on the main road, which stretched straight ahead for miles, I was confident that I would be in Santiago by mid-to-late afternoon. By the time I arrived at midnight, I wished that I had had a three dimensional or topographical map that showed how mountainous Galacia is.

I must replace the model the earth is flat (but bumpy) with the model the earth is a sphere if I plan to circumnavigate the globe. But if I plan to orbit the planet, I may want to know that it is flattened at the poles and bulging at the equator; I might also want to know that the essentially spherical earth has an irregular, nonspherical magnetic field.

In each of these examples, a particular model worked perfectly well for some purposes but not for others. It is not that pre-Copernican humans were silly to think the world flat, and that we are smarter because we know the earth is "really" round. Rather, a workable understanding of the planet emerges when we know that we may treat it as flat for some trips, bumpy for others, and round for yet others. Similarly, it is difficult and dysfunctional to try to capture all the possibilities and uses of adjudication in a single metaphor or model.

That the single term "law" should cover the Rule against Perpetuities as well as the result of a controversy under the Commerce Clause is a prolific source of confusion. It is a great pity that the differences in the content of the material, the intellectual approach, and the technique of adjudication between the two types of cases are not indicated at least by recognizing the broad classification of "private law" and "public law." n701

Yet, our legal doctrine uses a single, simple orientational metaphor ("standing") — and a single, related model (the private rights model) — in its attempt to capture all of the limits and possibilities of the process of adjudication. Public rights cases simply do not fit into the more limited private rights model: They are square pegs forced into round  [*1498]  holes. Thus, the law of standing seems incoherent much of the time and, in fact, does not work very well. In contrast, we employ a rich variety of structural metaphors that inform our understanding and organize our experience of the functional aspects of the adjudicatory process.

Litigation is an ordeal: The basic event is a trial, which is usually a continuous event with a final, determinative end. n702 The actual experience of trial is an ordeal for most litigants and lawyers. n703

Litigation is combat: Litigators are adversaries; they talk strategy and make a plan of attack; they go for the jugular. They fight it out in court. This metaphor derives from the rational argument is war metaphor that is conventional in our culture. n704

Litigation is a play: There is much role playing at a trial; all lawyers want their witnesses to stick to the script. We try to tell a story. n705

Litigation is a religious ritual: n706 Judges wear priestly robes; the participants have special, even honorific, names; even simple forms of speaking are ritualized ("Did there come a time that ..."). n707

Litigation is a game: n708 There are winners and losers, rules of the game, prosecution and defense teams. n709

 [*1499]  Apparently inconsistent metaphors, such as these metaphors about litigation, are coherent, and therefore work together, when they each have similar entailments. n710 Each of these structural metaphors shares entailments with the orientational "standing" metaphor: We stand at religious ceremonies; most of our fighting is upright (as in "stand up and fight like a man"); the notion of ordeal is often expressed through this metaphor (as in "if you can't stand the heat, get out of the kitchen"); and the only people who always remain seated at a play are the audience. Games commonly have threshold requirements as anyone who couldn't "ante up" in poker or didn't make the cut for the varsity squad knows all too well.

There is, however, an important structural metaphor with which "standing" does not fit: Adjudication is a dialogue. "Dialogue" is from the Greek dialogos. It is formed from the preposition dia — meaning through, between, or across n711 — and the noun logos, which signifies the universal rationality. n712 The dialogue metaphor does not fit either sense of "standing": Not only do we usually converse seated, but we usually welcome participation from anyone with something meaningful to add. n713 This metaphor is, therefore, partially submerged in our system. Although the dialogue metaphor is invoked — whether we argue a motion, put on witnesses, or introduce physical evidence, we commonly  [*1500]  refer to the event as a hearing — the dialogue metaphor is more typically used in descriptions of the appellate process. n714

The coherence of the individualist metaphor of "standing" with the five structural metaphors for litigation discussed above highlights that which is ritualized, painful, and disjunctive about the process. Together with the related private rights model, the individualist metaphor obscures and partially excludes from our legal world several critical aspects of our social world. The metaphor recognizes only self-interest as a motivator of human action; it denies the possibility that we may care for others and be moved to act upon that concern. It obscures not just that we are relational beings, but also that we exist in a variety of different kinds of relations and groups.

A fuller and more functional system would recognize at least five different group models based on part-whole and link schemata in addition to the familiar individualist, private rights model of legal controversies premised on the source-path-goal schema.

(1) An aggregative model: This model is exemplified by the class action premised on a common question of fact, which prior to the 1966 amendments to the Federal Rules of Civil Procedure was referred to as the "spurious" class action. n715 In these circumstances, the class is really just an aggregation of individual claims connected by a common circumstance, such as multiple accident victims in an airplane crash.

(2) A representational model: This model is altruistic. The individual may act for other affected individuals because the latter are unable to act for themselves. The altruism may be partial or pure. The petition for a writ of habeas corpus brought by the "next friend" of the person  [*1501]  who is incarcerated illustrates the pure model: In contrast, the informer's action brought by someone who has information about, but is unaffected by, an illegal action illustrates the partial model: The informer is offered private gain as a consequence of his or her public service.

(3) A communal model: Individuals may share more than a predicament; they may actually share a community of interest. This rationale led to the modification of Rule 23 in 1966, and is illustrated by an early school desegregation case, Potts v. Flax, n716 relied on by the drafters of the amendment. n717

In Potts v. Flax, the school board challenged the district court's award of class-wide relief. In the board's view, a "class action was not appropriate since each student is admitted, assigned and transferred as an individual.... [The board questioned] the right to bring a class action by reason of the intrinsic nature of the rights involved." n718 But the Fifth Circuit held that: "The peculiar rights of specific individuals were not in controversy." n719 Indeed, the court of appeals held that, even if the case had not been brought as a class action, the district court could not have entered an order specifying that only the named black plaintiffs be admitted to the previously all-white school. Rather, only class-wide relief would have been constitutionally permissible.

There is at least considerable doubt that relief confined to individual specified Negro children either could be granted or, if granted, could be so limited in its operative effect. By the very nature of the controversy, the attack is on the unconstitutional practice of racial discrimination.... [T]o require a school system to admit the specific successful plaintiff Negro child while others, having no such protection, were required to attend schools in a racially segregated system, would be for the court to contribute actively to the class discrimination.... n720

While the holding in Potts is unremarkable, there is something that seems incongruous about its dicta suggesting both that individual relief might be prohibited in an individual case and that, instead, class relief might be required. But the Potts court recognized that there are situations in which the individual cannot be separated from the group to which he or she belongs without causing or condoning substantial injustice.

(4) A relational model: This model introduces notions of volitional community and of intimacy. Cases like Singleton v. Wulff n721 exemplify this model. In Singleton, it is the doctor/patient relationship that is affected  [*1502]  by the challenged state action, not the doctor as (money-making) individual and the patient as (abortion-seeking) individual. The individuals seek out each other, and their complaint is that the state is impinging on their activities as a unit, that is, on their relationship. Important human relationships depend on intimacy, vulnerability, and trust. These individuals share a stake in their interaction; n722 the relationship they form is an entity that is richer than the sum of its individual, selfish parts.

(5) A constituent model: This model is familiar to us as the shareholders' derivative suit that the early twentieth century Court first employed in considering citizen and taxpayer standing before Fairchild and Frothingham. n723 This model recognizes that, altogether, individuals are the entity they constitute. n724 Thus, they may sue on its behalf against others. More importantly, constituents may sue the entity to make it conform to the law. Both derivative suits and the seventeenth through late nineteenth century mandamus petitions served this purpose.

Current standing law is completely coherent only with the first of these, the aggregative model. Standing law does not cohere with the pure representational model, although, as in Havens Realty, a fiction can sometimes make standing law do some of the work of a representational model. n725 Standing law can accommodate the communal model when a representative individual with a live claim sues, although Lyons provides a disturbing counterexample. n726 Standing law cannot accommodate the fourth model unless the relational case is a sufficiently close variant of the individualist prototype. n727 Standing law completely subverts  [*1503]  the importance of the constituent model, as Valley Forge illustrates. n728

Thus, "standing" obscures several important aspects of our everyday reality. Standing law allows only the possibility that we act out of self-interest; it ignores the fact that we often act out of concern for others. By refusing to recognize altruism as legally cognizable, standing law devalues the social importance of altruism. Standing affirms and reinforces values in modern culture that are disjunctive, fragmented, and alienating.

Our legal system is unable effectively to deal with those aspects of society that the metaphor of "standing" and its doctrinal derivative obscure. Because the law sees us only as individuals, it obscures the communal and relational aspects of our experience. Thus, when presented with public injustice or the claims of a victimized group, the law sees "nothing more than a collectivity of private suits...." n729 Standing law disaggregates our interests and thus diminishes them. This process is most apparent in the suppression of the constituent model, where the price we pay is exacted in the diminution of the instrumental value of the rule of law in a functioning democratic system. This, I think, is what Justice Brennan had in mind in his dissent in Valley Forge, where he complained that the majority's standing decisions "tend merely to obfuscate, rather than to inform, our understanding of the meaning of rights under the law." n730

C. Standing and Self-Governance

Perhaps the reason the law of standing so often seems incoherent is that it is superimposed on a process that is largely dialogical and normative. Standing is individualistic and, thus, merely aggregative in its approach to groups. But both the dialogical and normative character of the adjudicative process are inherently communal. The law is incoherent because the metaphors involve mutually exclusive entailments. One consequence is that a doctrine which is justified in terms of the separation of powers and the protection of democratic, majoritarian choice becomes instead, an undemocratic tool of exclusion. Rather than a tool to maintain the legal balance of our system, standing law becomes a principal mechanism for making constitutional guarantees unenforceable and for subverting the rule of law.

 [*1504]  Dialogue is communal in that it is participatory. Normativity too is communal in that it addresses, organizes, and often originates n731 from the community. In the actual experience of our legal system, the process of constitutional adjudication is dialogical both in its normative methodology and in its processes. Both individual cases and substantive constitutional doctrines are explicitly interactive in drawing from other societal sources the sum and substance of the fundamental values to be considered protected by specific constitutional provisions. n732 Indeed, large portions of modern constitutional doctrine are explicable only in terms of "the dialogue between the Court and society over the content of our norms and deepest values." n733 And, constitutional adjudication is obviously dialogical in its process. It is largely appellate. As we climb the appellate ladder, the briefs and oral arguments get longer and the degree of participation by non-party amici curiae increases. John Stuart Mill justified judicial review in part by observing that constitutional adjudication in the Supreme Court is particularly dialogic: "[I]ts declarations are not made at a very early stage of a controversy; ... much popular discussion usually precedes them; [and] the court decides after hearing the point fully argued on both sides by lawyers of reputation...." n734

The dialogic nature of the Court's process is substantially at odds with the conceptualization of the adjudicative process by means of "standing" and the private rights model. Despite the persistence of the Court's apparent dedication to the individualistic premises of standing, it is less disciplined regarding its own self-governance. The Court seems quite comfortable in its normative role n735 despite the absence, in  [*1505]  many cases, of a traditional, bipolar legal controversy. Two recent examples are Attorney General of New York v. Soto-Lopez n736 and Bob Jones University v. United States. n737.

In Soto-Lopez, two American citizens of Puerto Rican origin challenged actions by the New York City Civil Service Commission denying them a veterans employment preference. New York limited the preference to veterans who were state residents at the time of their enlistment. Both plaintiffs were long-term New York City residents, but both were Puerto Rican residents when they enlisted. The plaintiffs sued the city, arguing that the residency requirement violated their constitutional right to travel. The New York State Attorney General intervened pursuant to the applicable federal statute, section 2403(b) of the Judicial Code. n738 The plaintiffs won in the court of appeals. The State of New York appealed. The City of New York, which was the only entity from which the plaintiffs could seek any concrete relief, did not appeal. Thus, appellant's only interest before the Supreme Court was in the constitutionality of the state statutory and state constitutional provision limiting eligibility for the veterans' preference.

Although counsel for Mr. Soto-Lopez raised the issue of justiciability at oral argument, the Court's opinion gives not the slightest hint that it was even questioned. n739 The problem of justiciability created by section 2403, however, was noted by commentators at the time of its passage. n740 When confronted with this problem, lower courts  [*1506]  had held that "the desirability of an advisory opinion is not a substitute for justiciability.... There is a difference between permitting the [government] to play an active role during the pendency of private litigation, and permitting it to go forward with the litigation in its own right after the private parties have composed their differences." n741

In Bob Jones, the justiciability problem ran even deeper than in Soto-Lopez. By the time the case reached the Supreme Court, the litigation was purely unipolar because the government had switched positions and agreed with the plaintiff. The Carter Administration had denied tax exempt status to a private religious school because of the school's avowed policy of racial discrimination. When the case reached the Court, however, the Reagan Administration indicated that it would revoke the relevant regulation denying tax exempt status to such schools. The Court appointed a private individual, former Secretary of Transportation William T. Coleman, Jr., as a special amicus curiae to argue the government's former position. The government moved to dismiss the case as moot.

The Court's discussion of the lurking problem of justiciability was confined to a footnote. n742 The Court stated that the District of Columbia Circuit had enjoined the government from granting tax exempt status to schools that discriminate, observing that the Reagan Administration had informed the Court that it would not revoke the regulation. But the justiciability question remained unresolved, because the government had not changed its position in the Bob Jones case. Moreover, when the District of Columbia Circuit case was later appealed, the Supreme Court held that the plaintiffs did not have standing to raise the question. n743

Both of these decisions are good ones. Each reinforces notions of community: Soto-Lopez reaffirms that, under the Constitution, our community is national and not state or local; Bob Jones declares that the nation will not subsidize with favored tax status institutions that shun segments of the community. But neither fits the ordinary model of adjudication that the Court so rigidly insists on in cases like Simon or Valley Forge.

"[P]eople in power get to impose their metaphors." n744 The Realists and post-Realists are partly correct that the Court manipulates standing, but they miss the true focal point of that manipulation. Standing is not an on/off switch that the Court flips depending on its feeling about  [*1507]  the merits of the particular case. The Court's actions only look calculated in that way because standing is not really separable from the merits. The manipulation is different: The Court's invocation of standing limits the normative work of the lower courts. But, the Court is more flexible in the way in which it allows standing law to guide its own decisions, partly because the Court appreciates that its role is inherently normative. Who could be better to discuss the relevant norms with than the New York Attorney General in Soto-Lopez or a "lawyer of reputation" n745 like Bill Coleman in Bob Jones?

But this inconsistency permits "traces of self-government" only at the Court, n746 denying the citizenry at large the possibility of participation. If, however, our adjudicative process is about the "commitment to the pursuit of mediative practical reason through normative dialogue ...," n747 as I believe it is, then a commitment to democracy and self-government implies citizen participation. An earlier generation held this view, recognizing the constituent model and understanding that every citizen "is interested, as a citizen, in having the laws executed, and the right in question enforced." n748 Indeed, that generation viewed citizen interference to "see that a public offence be properly pursued and punished, and that a public grievance be remedied" as a duty, as well as a right; they saw it as the onus of democratic self-government. n749

This vision of the process of active self-governance by the citizenry now marches down the halls of the legal academy under the republican banner. n750 The republican vision is exactly contrary to the Court's view, which rejects any possibility "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." n751 But the republican vision of participation and reason is closer to that of the first Congress — which authorized uninjured and unaffected informers to enforce in court legal restrictions on customshouse officials — than is the monochromatic vision of current constitutional doctrine.

The real problem of the supposedly counter-majoritarian tendency of judicial review is that so much of the normative work of the courts occurs through a process that is exclusionary rather than participatory. The  [*1508]  systematic destruction of the constituent model through modern standing law denies the notion that, in a democracy committed to self-government, the whole cannot be something more powerful than the sum of its parts. This undemocratic denial is what renders unacceptable much of current standing law, which disallows equally to each and every constituent the possibility of asserting the rights of the group and of the entity, as illustrated by Richardson, or Schlesinger, or Valley Forge. It is, thus, an affirmation of authoritarianism in the guise of democracy; it is a denial of self-governance.

The public rights model, in contrast, recognizes that we are the government and that we are entitled to decide our fate. We do so by adopting communal norms and by enforcing them. The public rights model is republican in both the particular, American, historical sense n752 and in the "deep" sense that Professor Michelman identified: It is "participatory, conversational, inclusory, reasonable, and strongly committed to immediacy." n753 By "immediacy," Michelman means that "self-government is the business of the self, not to be displaced onto any distanced force." n754

Thus, "freedom consists of socially situated self-direction — that is, self-direction by norms cognizant of fellowship with equally self-directed others." n755 Only the public rights model recognizes that we exist in a community with self-directing others. Only this model affirms the ability of the individual citizen to be heard above the din of pluralistic, self-interested, majoritarian politics, and to participate directly in the normative process. The answer to the "baffling" question of "where to find self-government under 'this Constitution'" n756 is hidden in that part of our history obscured by the law of standing: the public rights model.

D. Managing Our Metaphors

The Framer's generation had a better understanding of the meaning of rights in a democracy, in part because they were not restricted by the monophonic "standing" metaphor. Today, the Court's dominant ideology of standing doctrine allows us to hear with only one ear. Not surprisingly, we hear less: "The fox knows many things, but the  [*1509]  hedgehog knows only one great thing." n757 The Framers' generation was alert to citizen participation; the modern Court uses standing as a defense against such participation in much the same way that the hedgehog uses its porcupine-like quills against its enemies.

The advantages of the original participatory scheme were twofold. First, with more models at its disposal, the law of justiciability could accommodate greater portions of our reality as necessary. Second, the original scheme was designed to maintain the constancy of political (read: democratic) choice. Because the limitation of adjudication to cases and controversies was only a limitation to the judicial forms, the legislature could control the work of the courts by creating new rights, new remedies, or new forms of action. n758 Furthermore, the doctrine of that era recognized that not all questions were equally suited to judicial determination, even if the questions could be raised by one of the recognized forms. Marbury, which concerned a public rights model and emphasized the common law's requirements, or the identity of rights and remedies, n759 recognized that there were some "acts that are only politically examinable." n760 This political question doctrine, with all its doctrinal difficulty, preserved the constancy and immediacy of the underlying political choice.

Professor Tushnet observed that "when the political questions doctrine fell into desuetude after Baker v. Carr, it was replaced ... by the standing doctrine." n761 Standing law thus replaced a direct choice about the uses of adjudication with a surrogate doctrine viewing the adjudicative process by means of an abstracted vision of the process' elements. But this abstracted vision fails in three ways: because "standing" considers only one part of the process, the private rights model; because standing is a surrogate, too far removed from the realities and policies it seeks to address meaningfully to accomplish its purpose; n762 and because the balance that standing law attempts to strike is defined in putatively neutral, process-oriented terms. Even if this neutral posture were possible, it would still be dysfunctional. Standing law has no mechanism for adjusting the balance with changing times and situations; it therefore presumes that the balance sought by Justices  [*1510]  Brandeis and Frankfurter in the substantive due process era will be appropriate for the twenty-first century. In contrast, the original participatory scheme preserved choice, recognizing that some things are better mediated by reasoned adjudication and others by the ballot box, the legislative bargain, or executive discretion. The participatory vision required an ongoing discrimination among areas of relative institutional competence and effectiveness. n763 The original scheme allowed the balance to shift with changes in society; it acknowledged that our situation and our needs for governance are not static.

The cost of the current system is the cost of obfuscation. That cost is manifest in cases like City of Los Angeles v. Lyons, where human life and constitutional constraint on state power were balanced against law enforcement's need for discretion to pursue its mission effectively. n764 Instead, the Court focused on whether Adolph Lyons had a personal controversy with the City of Los Angeles regarding the future conduct of its police officers. That he had once been choked nearly to death was irrelevant because, in the Court's view, that fact did not address the likelihood that Mr. Lyons might be subjected to a chokehold again. That others were dying while the case continued was irrelevant. Also irrelevant was that they too could not be present because the police had not yet chosen them as victims. And most irrelevant was the political process, which ultimately stopped the carnage, but not until another six individuals had died. n765

Lyons was a case in which standing law disaggregated individuals who shared an important, life-or-death interest. But equally importantly, Adolph Lyons and the other victims were also constituents harmed by their own government. They depended entirely on the "rule of law" to constrain that government from harming them unjustly. When Adolph Lyons pressed their claim against government, he was insisting on public rights. He was insisting on their behalf that government act only within the community's norms, as expressed in the Constitution and in the normative process of its interpretation.

What gave Mr. Lyons the "right" to speak for others and insist on legality in others' behalf? Is it not preferable that others assert their own rights, as the Court acknowledged in Singleton? n766 From the individualist standpoint, Mr. Lyons' concern was officious, intermeddling, and inappropriate. Standing law would permit him to act only in his  [*1511]  own self-interest. The Court could not see any such interest because the Court thought it highly "speculative" that Mr. Lyons would be subject to the challenged police practice again.

But, a plaintiff like Adolph Lyons can be motivated by something more than the Court allows. True, Mr. Lyons had been wronged and he sought monetary relief for himself. And, as the dissent argued, his concrete interest made him a reliable representative for the interests of the as yet unidentified future victims. n767 But, one's motivation can be broader, more generous. No doubt Adolf Lyons was angered about his own mistreatment. But such anger can be expressed as concern for others. Mr. Lyons' suit reflected such an extension of self — the identification of the interests of the self with those of others — precisely what the "law of standing" does not allow. n768 Standing law not only leads to bad decisions, it represents bad sociology and bad morality as well.

Cases like Singleton, Geraghty, and Roper recognize that altruism may be, if we will it. Rule 23, like its forebearer bills of peace in equity, n769 acknowledges that communities of interest do exist and that the law can recognize and address them. Acknowledging the altruistic, relational, communal, and constitutive models I have suggested will raise other questions: (1) How to save the meaningfulness of the adjudicatory process after standing has been abandoned; (2) how to make representation work; and (3) how to decide who makes these determinations. The answers to these questions are already implicit in existing legal doctrine and theory.

To say that the essence of the process lies not in the private rights model, but in the self-referring notion that a dispute is justiciable when it is "definite and concrete, touching the legal relations of parties having adverse legal interests" is not new. n770 Courts at the dawn of the age of standing recognized that "[t]he prime object of all litigation is to establish a right asserted by the plaintiff or to sustain a defence set up  [*1512]  by the party pursued." n771 What we need for justiciability are parties who have taken up adverse positions, a presentation of an abstract legal question in a factual setting sufficiently concrete to inform judgment, and "judicially discoverable standards" n772 — a question that fits the existing legal categories and is susceptible to the dominant modes of legal thought. The Court asked only for these elements in Hayburn's Case. It was not concerned that the Attorney General had no personal stake; it was concerned that the outcome of the controversy would turn on executive discretion rather than the result of the Court's "mediative practical reason through normative dialogue." n773

The stripped-down definition of "case or controversy" that I have just described is only the common denominator of the political question and standing doctrines. It would account for virtually all of the classic decisions in cases mounting generalized challenges to constitutional amendments or congressional statutes. n774 If the definition doesn't say very much, it is because there isn't much to say. Once we recognize that legislation and adjudication are not dichotomous, but are merely different points on a single normative spectrum, then we are free to assume responsibility. In the meantime the courts hide, like Professor Vining's octopus at the bottom of the ocean:

Inside the self-constructed home everything does not depend on everything else and entities do not dissolve conceptually into some other entity or some larger unity. The court can swim out into the great sea around and dart back when frightened by its dark vastness.... Fear may make it too difficult to admit, except by allusion, that one is swimming in the sea and that one's behavior is a reaction to it. Denial is a normal defense of the human mind against great fear; the legal mind is not peculiar in this regard. n775

Cases like Lyons remind us that there is a real human cost to this particular defense-mechanism.

The answer to the second question — that of assuring adequacy of representation — starts with the recognition that the problems of representation are purely instrumental. For years, commentators have recognized that the broad equitable powers of the federal courts are entirely sufficient to assure the competence and adequacy of representation. n776 Nineteenth century law, as described in cases like Wellington n777 and Hall, n778 employed just such a flexible, instrumentalist  [*1513]  approach. Rule 23 already provides a model less cumbersome than the statutory informer suit with its multiple complications n779 and more easily regulable than the English relator practice. n780

I do not mean to suggest, however, that we reconstitute standing in the class action mode. Rather, in a democracy, the issue of how we reconstitute models of justiciability should be open to discussion and debate. The point of this article is not to advance a particular doctrinal proposal as the solution to our problems, but rather to open the debate on the occasions for public rights litigation. Standing in the shadow of current doctrine, n781 congressional power to determine appropriate justiciability models seems in doubt. n782 It should not be. The answer to the third question — who makes decisions about access to the courts — lies in fundamental democratic premises: The elaboration of the public rights model and the occasions for its invocation should be "a development to which the courts contribute but in which the legislature has an even greater hand." n783

If standing is really about the right to be recognized and its concomitant remedies, then Congress, and not the Court, should have the ultimate power to define standing. Congress may recognize or create legal rights; it may structure the most meaningful remedies to see their fruition within a society of competing interests. If standing law seeks to define the proper uses of adjudication in a democratic society, then the democratic process should be the primary mechanism through which the uses and limits of adjudication are chosen. The nineteenth century Court explicitly acknowledged the primacy of Congress in determining the limits of justiciability in mandamus cases like Kendall and Hall. n784

The current system is democratically dysfunctional. The Court decides how the judicial process is to be used and for what. In so doing, the Court inevitably decides what rights citizens have to demand that government behave according to the general will. Yet, the Court does so without accounting to the public for its reasoning. This system is more undemocratic than adjudicative norm-making; it takes control of government out of the hands of government's constituents. Standing law disaggregates the citizenry; it is a judicial version of divide and conquer. Democratic  [*1514]  politics — and republican participation — should have a greater say in what the courts do and how they do it. We may ask less of the courts than we do now; we may insist on more. But it is for us to say.