Standing for the Public: A Lost History

Article — Volume 95, Issue 5

95 Va. L. Rev. 1131
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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.

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  Volume 95 / Issue 5  

Standing for the Public: A Lost History

By M. Elizabeth Magill
95 Va. L. Rev. 1131

Full Faith and Credit in the Early Congress

By Stephen E. Sachs
95 Va. L. Rev. 1201

Is O Centro Really A Sign of Hope for RFRA Claimants?

By Matt Nicholson
95 Va. L. Rev. 1281

The Hapless Ecosystem: A Federalist Argument in Favor of an Ecosystem Approach to the Endangered Species Act

By Scott Schwartz
95 Va. L. Rev. 1325