Justiciability: Standing and Redressability

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The issue of whether a litigant has standing to make a legal claim in a court is critical to whether he may obtain justice and enforce a law, especially a constitution. In the U.S., there has been a tendency for court practice to reduce standing, making it more difficult for persons to challenge unconstitutional practices. This is a fairly recent development. Until Frothingham v. Mellon, 262 U.S. 447 (1923) the prevailing doctrine in the federal courts was that any person had not only the right but the duty to seek redress for violations of a "public right", without having to have suffered a personal injury. Following the lead of the federal courts, the state courts have adopted a similar doctrine, conveniently ignoring the alternatives of injunctive, declarative, and quo warranto relief.

A closely related issue is redressability, and courts have avoided granting standing or offering relief in cases in which they held they lack the power to grant effective relief, sometimes in cases in which only declaratory relief was sought.

It is important to understand that in the Founding Era it was presumed that any person could litigate a public right, and the Constitution was designed with this justiciability in mind. If there is no right without a remedy, then dismissal of pleadings for lack of "standing", or "redressability", or "ripeness", effectively removes constitutional rights by removing their remedies.

1.        The Metaphor of Standing and the Problem of Self-Governance, by Steven L. Winter, 40 Stan. L. Rev. 1371, July, 1988.
2.        Standing and Spending — The Role of Legal and Equitable Principles, by Richard A. Epstein, Chapman L.R. 4:1 Spring 2001.
3.        Laidlaw: Redressing the Law of Redressability, by Harold J. Krent, 12 Duke Envtl. L. & Pol'y F. 85 (2001).
4.        What if Justice Scalia Took History and the Rule of Law Seriously?, by Steven L. Winter, 12 Duke Envtl. L. & Pol'y F. 85 (2001).
5.        From Lujan to Laidlaw: A Preliminary Model of Environmental Standing, by Maxwell L. Stearns, 12 Duke Envtl. L. & Pol'y F. 85 (2001).
6.        Standing on Its Last Legs: Bennett v. Spear and the Past and Future of Standing in Environmental Cases, by Sam Kalen, Florida State University Journal of Land Use & Environmental Law, 1997.
7.   Let's Revive Private Prosecutions, by Jon Roland, 1996 — Denial of standing for private criminal prosecutions has thwarted a critical means to fight public corruption.
8.        Toward a Functional Understanding of Standing, by Vikramaditya S. Khanna, Discussion Paper No. 355, Harvard Law School, 03/2002.
9.            Does History Defeat Standing Doctrine?, by Anne Woolhandler & Caleb Nelson, Mich. L. Rev. (2004). Argues it does not, but glosses over the prerogative writs.