Manning the Gates: Standing Doctrine as a Barrier to Judicial Policing of Agency Action in the United States, Germany, and the European Union

19 Pages Posted: 23 Nov 2013

Date Written: November 21, 2010

Abstract

In a system of government that includes legislative, executive, and judicial branches, and where the judicial branch’s decisions are treated as binding on the other branches, limits on the judicial branch are as important as limits on the political branches, lest judicial supremacy become judicial tyranny. A primary limit on the judiciary is encapsulated in the term “separation of powers.” Although the term is not self-defining, much less self-executing, at its heart it suggests that the judiciary is supreme only when it performs a judicial function, that of deciding cases brought before it. A principal doctrine delimiting when courts should decide cases is the doctrine of standing. It is such a basic concept that it arises in significantly similar forms even in different legal jurisdictions. This article considers the doctrine of standing as it has evolved in American law and compare it to both the German and European Union’s standing doctrine. This consideration and comparison will show how much the different doctrines of standing have in common and how each have struggled, and are struggling, with their historical and theoretical backgrounds in attempting to fashion a “modern” law of standing.

Keywords: standing, separation of powers, judicial review,

Suggested Citation

Funk, William F., Manning the Gates: Standing Doctrine as a Barrier to Judicial Policing of Agency Action in the United States, Germany, and the European Union (November 21, 2010). Available at SSRN: https://ssrn.com/abstract=2358076 or http://dx.doi.org/10.2139/ssrn.2358076

William F. Funk (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219-7799
United States
503-768-6606 (Phone)
503-768-6671 (Fax)

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