Against Associational Standing

Abstract

Associational standing is a widely used doctrine that has never been subject to serious academic scrutiny. It allows an entity that has not suffered any injury-in-fact to sue in its own name to assert its members’ causes of action. Though the doctrine is often associated with public interest groups, major corporations have usurped it to be able to sue, through trade groups or entities created solely to pursue a particular lawsuit, without becoming party litigants to the case.

Associational standing was first recognized as an offshoot of third-party standing to allow an organization to assert its members’ rights concerning their relationship with, or involvement in, the organization itself. The Court has since extended associational standing to allow a group to pursue any of its members’ claims within the group’s substantive purview, including those completely unrelated to the member’s affiliation with the group. The Court has likewise allowed zero-member groups to invoke associational standing, despite their lack of members, to litigate non-members’ claims, and even enabled groups to pursue their members’ damages claims in certain circumstances.

The doctrine stands in tension with the fabric of American law in ways that have been generally overlooked. Statutes, procedural rules, and most judge-created requirements were not crafted with associational standing in mind, repeatedly creating unnecessary quandaries at each stage of the litigation process. Associational standing allows plaintiff groups to circumvent Rule 23 by allowing them to effectively craft their own classes without judicial approval. The doctrine also violates Rule 17(a)’s real party-in-interest requirement, triggers disputes over potential asymmetric claim preclusion, and offers a backdoor method for courts to inappropriately issue nationwide defendant-oriented injunctions. It can also undermine public policy goals by impacting how statutes such as the Equal Access to Justice Act apply to a right holder’s claims, and violates traditional equitable principles. While courts may adopt ad hoc solutions to address each of these difficulties individually, such patches underscore the poor fit between associational standing and the structure of American litigation.

This Article calls for the abandonment, or at least serious modification, of associational standing. Even without associational standing, groups may still sue to enforce their own rights. And they could likewise continue to enforce their members’ rights by providing legal representation for member plaintiffs, covering members’ litigation costs, and providing expert witnesses and other guidance. In short, associational standing is a largely unnecessary deviation from the fundamental principles underlying our justice system.

Keywords: Federal courts, constitutional law, civil procedure