Article - Virginia Law Review

What is Standing Good For?

This Article provides a novel explanation of the function of standing doctrine in public law. Standing restrictions bar suits challenging governmental conduct that harms many people in an similar fashion, or that causes only an inchoate harm to the plaintiff. The voluminous scholarship on standing has been nearly uniformly critical of doctrine. Leading academics and judges have denounced it as useless and incoherent, and calls for its abolition abound.

The Article uses economic analysis to show that standing prevents potentially inefficient dispositions of constitutional entitlements that result from problems of high transaction costs and strategic behavior. Standing plays this role when a single governmental action infringes on the rights of many people with conflicting preferences about how and whether to use their rights. Some may prefer to exercise their right affirmatively; others may prefer to waive them. In this situation, when one person seeks injunctive relief, his exercise of his rights effectively determines the exercise of the individual rights of everyone in the affected class. Thus every individual rights-holder, in the absence of standing restrictions, would have veto power over a government action that affects the rights of many, making strategic holdout likely and efficient bargaining around an injunction nearly impossible. Standing allows courts to bypass the problems of high transaction costs and strategic behavior by attempting to replicate the outcome that would be reached in a low-transaction cost environment – the outcome in the sense of whether the government action proceeds or not.

Thus contrary to conventional wisdom, standing has significant, autonomous, and public-regarding functions. The analysis presented here also helps explain many of the mysteries of standing: Why should inchoate injuries be less justiciable than tangible ones? Isn’t it paradoxical that justiciability exists when a few people are harmed, but not when a great many are harmed?

The Article also shows that while eliminating the doctrine would result in significant social costs, standing is itself not an costless solution. Thus the paper considers other potential solutions, such as using liability rules, the typical prescription for problems arising from high transaction costs. These solutions are found to also have serious problems.

Domesticating Sole Executive Agreements

At a time when many question the wisdom and constitutionality of unchecked executive power, the Supreme Court has recently recognized virtually unlimited presidential power to make “sole executive agreements” with the force of federal law. Although such agreements with foreign nations are neither approved by the Senate as a “Treaty” nor enacted by Congress as a “Law,” the Court has asserted that they are generally “fit to preempt state law, just as treaties are.” To be sure, Presidents have long used sole executive agreements as a means of implementing their underlying constitutional and statutory authority. The Court’s novel conception of such agreements as an independent source of federal power, however, is in tension with the Supremacy Clause, which recognizes only the “Constitution,” “Laws,” and “Treaties” of the United States as the supreme law of the land. Significantly, each of these sources of law must be adopted by the Senate acting in conjunction with one or more additional actors. Allowing the President to use sole executive agreements to override preexisting legal rights circumvents the political and procedural safeguards built into the Constitution. The Court has attempted to justify its novel approach by invoking two well-known historical precedents: executive agreements settling claims by U.S. nationals against foreign sovereigns, and an executive agreement recognizing the Soviet Union and assigning its claims against U.S. nationals to the United States. Taken in historical context, however, neither precedent supports a freestanding presidential power to make sole executive agreements with the force of federal law.

The (Hidden) Risk of Opportunistic Precautions

Under the conventional tort law paradigm, a tortfeasor behaves unreasonably when two conditions are met: the tortfeasor could have averted the harm by investing in cost-effective precautions and failed to do so, and other, more cost-effective precautions were not available to the victim. Torts scholarship has long argued that making such a tortfeasor responsible for the ensuing harm induces optimal care. This Article shows that by applying the conventional analysis, courts create incentives for opportunistic investments in prevention. In order to shift liability to others, parties might deliberately invest in precautions even where such investments are inefficient. The Article presents two possible solutions to the problem. By instituting a combination of (1) broader restitution rules and (2) an extended risk-utility standard, legislators and judges can reform tort law to discourage opportunistic precautions and maximize social welfare.

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