Some Puzzles of State Standing

Abstract

When should states have standing? In recent years, there has been an explosion in literature on that question. Yet, even today, there seem to be as many questions as answers. In this Foreword to the Notre Dame Law Review’s 2019 Federal Courts, Practice, and Procedure Symposium on state standing, I discuss a few such puzzles. First, should states have “special” standing when they sue the federal government — that is, greater access to federal court than private parties? Second, and conversely, should states have at least “equal” access to federal court, or should they face more barriers than private parties? This Foreword introduces readers to these questions, which are at the heart of the literature on state standing.

Keywords: State Standing, Jurisdiction, Federalism, Article III, Polarization, State Attorneys General, Law and Courts, Litigants and the Judiciary, Separation of Powers, Judicial Independence