Document Type
Article
Publication Date
2009
Abstract
This article recaptures a now-anachronistic approach to standing law that the Supreme Court followed in the middle decades of the 20th Century and explains how and when it died. It then speculates about why the federal courts retreated from the doctrine when they did. The now-anachronistic view of the permissible scope of standing, which is called here 'standing for the public,' permitted Congress to authorize parties who had no cognizable legal rights to challenge government action, in order to, as the Supreme Court itself said 'represent the public' and bring the government’s legal errors before the courts. Ironically, the federal courts retreated from this approach to standing law in the 1960s and 1970s, the very period that is best known for its doctrinal innovations that liberalized standing law. The article tells the (complicated) tale of how the courts erased the standing for the public principle from the case law, places those actions action in context by looking at contemporaneous developments in the legal profession and Congress, and speculates about why this approach to standing law died when it did.
Keywords
standing, constitutional law, administrative law
Publication Title
Virginia Law Review
Repository Citation
Magill, Elizabeth, "Standing for the Public: A Lost History" (2009). All Faculty Scholarship. 2857.
https://scholarship.law.upenn.edu/faculty_scholarship/2857
Publication Citation
95 Va. L. Rev. 1131 (2009)