Representational Standing: Us Ex Rel Stevens and the Future of Public Law Litigation
60 Pages Posted: 21 Sep 2000
Date Written: September 2000
In May 2000, the Supreme Court handed down its decision in Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, a seemingly predictable 11th Amendment case. In upholding the plaintiff's Article III standing to bring that case, however, the Court suggested a theory of "representational standing" that holds the potential to radically transform the entire body of law governing the ability of private citizens to seek, through the federal courts, the vindication of broadly-held public interests.
Over the past 30 years, the Court's increasingly restrictive standing jurisprudence has effectively precluded private citizens from playing a meaningful role in public law litigation. Properly understood, Stevens marks a significant shift in this jurisprudence. By proposing that Article III standing may, under certain circumstances, be based on the creation of partial assignments or true agency relationships between private citizens and the government, the Stevens Court, wittingly or not, has provided legislators with a roadmap for reintegrating private citizens in the enforcement of public laws.
The goal of this article is to unpack the theory of representational standing suggested in Stevens. By discerning the rules that will govern the application of this theory, this article contemplates the potentially revolutionary implications of representational standing for public law litigation.
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