Abstract

http://ssrn.com/abstract=969837
 
 

Citations (3)



 
 

Footnotes (137)



 


 



What Standing Is Good For


Eugene Kontorovich


Northwestern University Law School


Virginia Law Review, Vol. 93, November 2007
U of Chicago Law & Economics, Olin Working Paper No. 333
U of Chicago, Public Law Working Paper No. 153

Abstract:     
This Article provides a novel explanation of the function of standing doctrine in public law. Standing restrictions bar suits challenging governmental conduct that harms many people in an similar fashion, or that causes only an inchoate harm to the plaintiff. The voluminous scholarship on standing has been nearly uniformly critical of doctrine. Leading academics and judges have denounced it as useless and incoherent, and calls for its abolition abound.

The Article uses economic analysis to show that standing prevents potentially inefficient dispositions of constitutional entitlements that result from problems of high transaction costs and strategic behavior. Standing plays this role when a single governmental action infringes on the rights of many people with conflicting preferences about how and whether to use their rights. Some may prefer to exercise their right affirmatively; others may prefer to waive them. In this situation, when one person seeks injunctive relief, his exercise of his rights effectively determines the exercise of the individual rights of everyone in the affected class. Thus every individual rights-holder, in the absence of standing restrictions, would have veto power over a government action that affects the rights of many, making strategic holdout likely and efficient bargaining around an injunction nearly impossible. Standing allows courts to bypass the problems of high transaction costs and strategic behavior by attempting to replicate the outcome that would be reached in a low-transaction cost environment - the outcome in the sense of whether the government action proceeds or not.

Thus contrary to conventional wisdom, standing has significant, autonomous, and public-regarding functions. The analysis presented here also helps explain many of the mysteries of standing: Why should inchoate injuries be less justiciable than tangible ones? Isn't it paradoxical that justiciability exists when a few people are harmed, but not when a great many are harmed?

The Article also shows that while eliminating the doctrine would result in significant social costs, standing is itself not an costless solution. Thus the paper considers other potential solutions, such as using liability rules, the typical prescription for problems arising from high transaction costs. These solutions are found to also have serious problems.

Number of Pages in PDF File: 61

Keywords: standing, justiciability, transaction costs, constitutional law

Accepted Paper Series





Download This Paper

Date posted: March 11, 2007  

Suggested Citation

Kontorovich, Eugene, What Standing Is Good For. Virginia Law Review, Vol. 93, November 2007; U of Chicago Law & Economics, Olin Working Paper No. 333; U of Chicago, Public Law Working Paper No. 153. Available at SSRN: http://ssrn.com/abstract=969837

Contact Information

Eugene Kontorovich (Contact Author)
Northwestern University Law School ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States
(212) 503-0429 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 1,021
Downloads: 238
Download Rank: 75,697
Citations:  3
Footnotes:  137

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo4 in 0.328 seconds