The Nature of Standing

Abstract

Standing to raise a claim before a judicial tribunal is notoriously contested. Federal courts during the last century developed an increasingly rule-like and rigid doctrine around the concept of private injury to govern access to the federal forum. Some states followed the federal lead. Others have created important exceptions, and even in federal courts, issues like organizational standing, legislative standing, and standing of qui tam relators have proved controversial. We describe a broader taxonomy of agenda control rules, of which standing rules are a special case, to understand why and how courts and other institutions govern their choices of what to decide.

Dividing agenda control rules among ex ante and ex post rules and between procedural, membership-based, and subject matter-based rules, we identify standing as a set of rules analyzing a relationship between the entity raising an issue and the subject matter of the issue that is being proposed for decision. Using the broader toolkit of agenda rules, we analyze basic institutional considerations and how the rules within our taxonomy work together to serve various institutional goals. We elaborate the model using a peculiar standing regime employed by Oregon’s Land Use Board of Appeals as a concrete case study.

Keywords: standing, agenda control, justiciability, agenda, article iii