Standing for the Public: A Lost History

67 Pages Posted: 12 Jun 2009 Last revised: 16 Jun 2010

M. Elizabeth Magill

affiliation not provided to SSRN

Date Written: June 11, 2009

Abstract

This article recaptures a now-anachronistic approach to standing law that the Supreme Court followed in the middle decades of the 20th Century and explains how and when it died. It then speculates about why the federal courts retreated from the doctrine when they did. The now-anachronistic view of the permissible scope of standing, which is called here 'standing for the public,' permitted Congress to authorize parties who had no cognizable legal rights to challenge government action, in order to, as the Supreme Court itself said 'represent the public' and bring the government’s legal errors before the courts. Ironically, the federal courts retreated from this approach to standing law in the 1960s and 1970s, the very period that is best known for its doctrinal innovations that liberalized standing law. The article tells the (complicated) tale of how the courts erased the standing for the public principle from the case law, places those actions action in context by looking at contemporaneous developments in the legal profession and Congress, and speculates about why this approach to standing law died when it did.

Keywords: standing, constitutional law, administrative law

Suggested Citation

Magill, M. Elizabeth, Standing for the Public: A Lost History (June 11, 2009). Virginia Law Review, Vol. 95, 2009. Available at SSRN: https://ssrn.com/abstract=1417936

M. Elizabeth Magill (Contact Author)

affiliation not provided to SSRN

Paper statistics

Downloads
134
Rank
177,949
Abstract Views
811