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social choice theory, private-rights model, standing doctrine, public-rights, justiciability


One test of whether a scholarly work has achieved canonical status is to ask respected scholars in the field which works, setting aside their own, are essential reads. William Fletcher’s article, The Structure of Standing, now in its twenty-fifth year, would almost certainly emerge at the top of any such lists among standing scholars. And yet, while many at this conference have built upon Fletcher’s insights, there remains notable disagreement concerning standing doctrine’s normative foundations. The central dispute concerns whether standing doctrine should be celebrated as furthering a “private-rights,” or instead, condemned as thwarting a “public-rights,” adjudicatory model.

In a series of works employing social choice theory, I have presented standing doctrine as furthering a private-rights adjudicatory model. In separate high-profile works, Professors Heather Elliott and Jonathan Siegel have criticized this account, claiming it rests on the “great myth” that the judicial lawmaking is inextricably tied to dispute resolution, with precedent creation merely an incidental byproduct. Instead, Elliott and Siegel contend that the federal judiciary, including especially the Supreme Court, has the primary responsibility of announcing constitutional rules, with case resolutions a justificatory vehicle for performing that task. Siegel further maintains that if, as the social choice model suggests, standing raises the cost to ideological litigants of timing the path of case law to influence developing doctrine, it is no more effective than tossing a “few grains of sand” into the gears of the judicial-lawmaking apparatus.

In this Article I respond to these critiques and defend the social choice analysis of standing and the private-rights model on which it rests. First, these and other public-rights scholars fail to appreciate that the private-rights model enhances the normative legitimacy and durability of precedent. If the justification for creating precedent is the present favorable conditions of judicial staffing, then the arguments for respecting the resulting precedent erode when those conditions change, favoring those opposing the precedent. Second, these critiques misread the social choice model of standing to imply that relaxing its limiting conditions undermines the claim that with reasonable assumptions, even if there are no changes in Supreme Court staffing, in the disposition of cases below, in intervening precedent, and in the jurisprudential views of sitting justices, ideological litigants can effect substantive doctrine through favorable case orderings. The opposite is true: Relaxing these limiting conditions has the potential to enhance, not diminish, incentives to manipulate case orderings for maximal doctrinal effect. Third, and finally, expanding the social choice analysis to account for (1) delays in lower federal courts or state courts, (2) the results of changed judicial staffing on the Supreme Court, and (3) the bidirectional nature of constitutional and prudential standing rules more likely generates a butterfly effect, with substantial implications for developing doctrine, than an inconsequential tossing of sand into the works of developing precedent.

Publication Citation

65 Alabama Law Review 349 (2013).


Constitutional Law