An Organizational Account of State Standing
Essay, 94 Notre Dame Law Review 2057 (2019)
35 Pages Posted: 5 Aug 2019
Date Written: 2019
Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.
Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like at least one other category of so-called “aggregate litigants,” organizational plaintiffs, than the literature has previously recognized. In short, one can see state standing and organizational standing as fitting either side by side (in the sense that state standing runs parallel to organizational standing) or hand in glove (in the sense that state standing represents a species of organizational standing). And a preliminary comparison of institutional features suggests that state plaintiffs should have at least as strong a claim to standing in federal court as associational plaintiffs do.
These contentions lead to the conclusion that if the legal community feels comfortable with the wide scope of organizational standing, it should feel equally — and probably more — comfortable with the wide scope of state standing.
Keywords: states, standing, state standing, organizational standing, associational standing, aggregate litigation, aggregate litigants, federalism, federal courts, jurisdiction, justiciability
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