Limiting Article III to Standing “Accidental” Plaintiffs:

Lessons from Environmental and Animal Law Cases

Robert J. Pushaw

By Robert J. Pushaw
45 Georgia Law Review I (2010)

This article examines standing to sue in federal court. The Supreme Court’s limitations on standing often thwart the vindication of federal law, especially in crucial areas like environmental regulation. Pushaw argues that the court should revise its standing doctrine to better reflect the original meaning of Article III and to promote greater clarity.

Standing doctrine determines who can sue to enforce federal law. the Court has held that article iii, by extending “judicial power” to “Cases” and “Controversies,” restricts standing to plaintiffs who can demonstrate (1) a particularized “injury in fact” (2) caused by defendant (3) that is likely to be redressed judicially. . . . 1 2 3 4 5

The Court developed its basic standing requirements from 1939 to 1974 and has continually refined them. 6 Unfortunately, they remain malleable and have often been applied subjectively to reach preferred results. . . . 7 8 9 10 These problems are especially apparent with “injury in fact.” This requirement is easily met when a plaintiff has suffered physical harm or monetary loss. The harder cases involve new rights Congress has created that have no common law analogue. the Court has responded by recognizing equally novel “injuries,” such as reduced aesthetic enjoyment of the environment. . . . 11 12 13 14 15 16 17

The “individualized injury” determination often depends on using certain magic words. such arbitrariness also characterizes the other two Article III standards. First, “causation” is a discretionary policy judgment about how far back in a chain of events a court is willing to go. 18 Second, ascertaining whether an injury is “likely” to be redressed involves guesswork about probabilities. . . . 19 20 21 22 23 24

Because the Court only issues standing opinions every few years, the doctrine has far greater practical impact in the lower federal courts. They have broad discretion in implementing flexible standing standards, especially in legal areas where the Court has not yet spoken.

A timely example concerns the Animal Welfare Act (AWA), 25 which prohibits inhumane treatment of animals. Federal courts at first denied standing under the AWA because it does not create causes of action for private parties, but rather leaves enforcement to the department of agriculture. . . . 26 In several recent cases, however, the D.C. Circuit has granted such standing. . . . 27 28 29 30 31 32 33 34

This liberalization ignores two constitutional concerns. First, lenient standing threatens separation of powers, as policy decisions are transferred from Congress and executive agencies to unelected federal judges. second, whereas each agency implements its governing statute according to a set of enforcement priorities, private parties can sue defendants arbitrarily and thus threaten their liberty . . .35

The vagueness of standing doctrine reflects its lack of a firm foundation in Article III’s text, structure, and history . . .36 37 [I] propose certain revisions that . . .38 more accurately reflect the original meaning of Article III and enhance clarity.39

The definition of “judicial power” has remained stable since 1787: rendering a final judgment after interpreting the law and applying it to the facts.40 “Judicial power” necessarily must be exercised deliberatively, which means a court’s docket cannot grow so large that careful decision making becomes impossible.41 That imperative places an outer limit on Congress’s broad Article III authority to control federal courts’ jurisdiction: Congress cannot expand their caseloads to intolerable levels, which might occur if it granted standing to millions of people. . . .42

Moreover, article iii “judicial power” can be exercised only to decide “Cases” and “Controversies.” The Court has long asserted that standing is based on the historical understanding of these two words.43 Remarkably, however, no Justice has ever investigated their 18th-century usage. Even more curiously, the Court has never noticed that all of its standing decisions involve one category of Article III jurisdiction—”Cases” arising under the Constitution and federal statutes—whereas none concerns “Controversies.”

Recognizing this point would properly redirect the Court’s attention to the original meaning of the word “case”: a chance occurrence that invades someone’s legal rights and thereby gives rise to a cause of action, in which a court’s chief function is to expound the law.44 Thus, standing should focus on the appropriate plaintiff who can bring an Article III “case”—namely, one whose legal rights have been violated fortuitously (involuntarily as a result of an event beyond plaintiff’s control) and who can therefore legitimately trigger the court’s expository function.45

Applying this test, a court would find an “injury in fact” only when it befalls a plaintiff by chance. This sort of injury always exists when violation of a federal law results in tort, contract, or property damages. That explains why in most regulatory areas, the Court has held that Congress can entrust statutory enforcement to an agency and that no one else has standing except for those whose common law or constitutional rights have been directly abrogated.46 For example, AWA claims should ideally be litigated only by the usda and plaintiffs who have experienced common law harms. Realistically, however, the Court will not overrule its precedent recognizing environmental and aesthetic injuries. nonetheless, it should limit such cases by adopting a presumption that plaintiffs who suffer physical harm or financial loss meet the test of fortuity, whereas all others do not and are pursuing a deliberate litigation strategy.

Those latter plaintiffs should be able to rebut that presumption only by demonstrating that they suffered distinctive injuries that occurred fortuitously while they were engaging in lawful recreational activity for its own sake. . . . By contrast, standing should be denied to those who go somewhere specifically to look for legal violations to use as a basis to file a complaint. Such self-inflicted injuries should be treated as a species of feigned claims, which have long been barred. . . .47 48 49

When someone’s claims arise fortuitously, it is usually easy to identify who caused the injury and whether the relief sought will redress it.50 On the other hand, a plaintiff using the courts to advance a policy agenda typically has to contrive not only an injury, but also causation and redressability. . . .

In short, Article III “Cases” arise by accident rather than design. Incorporating this insight would greatly improve standing doctrine.


Robert Pushaw joined the Pepperdine faculty in 2001. He previously taught at the University of Missouri, where he twice earned the Excellence in Research Award. Pushaw’s scholarship, which studies the influence of 18th-century Anglo-American political theory on modern Constitutional Law, has been published in law reviews at Yale, Harvard, Michigan, Berkeley, Northwestern, Cornell, Georgetown, Notre Dame, Iowa, North Carolina, and William & Mary.

Reprinted with permission of the Georgia Law Review.


1 Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 180–81 (2000).

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6 See infra Parts I.a–I.c and accompanying text (tracing the evolution of standing).

7 Many scholars have lamented the political manipulation of standing doctrine. See, e.g., Gene R. Nichol, Jr., Rethinking Standing, 72 Calif. L. Rev. 68, 69 (1984); Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N.C. L. Rev. 1741, 1742 (1999).

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11 The landmark case on such “injuries” is Sierra Club v. Morton, 405 U.S. 727, 734 (1972).

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18 See infra notes 221-223 and accompanying text.

19 See infra notes 224-226 and accompanying text.

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25 7 U.S.C. §§ 2131-2159 (2006).

26 See, e.g., Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 501–03 (D.C. Cir. 1994).

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39 Cf. Pierce, supra note 7, at 1775–76 (recognizing that the Court will not abandon its standing law and therefore recommending modifications that would make the current doctrine more simple, objective, and consistent).

40 For an exhaustive analysis of the historical development of the Anglo-American concept of “judicial power,” see Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 Iowa L. Rev. 735, 746, 789, 805–06, 809, 827, 844–46 (2001).  I am not aware of any judge or scholar who has set forth a materially different definition.

41 I first contended that “judicial power” implied docket control in Robert J. Pushaw, Jr., Bridging the Enforcement Gap in Constitutional Law: A Critique of the Supreme Court’s Theory that Self-Restraint Promotes Federalism, 46 Wm. & Mary L. Rev. 1289, 1289, 1328–29 (2005).  That insight helped support the following argument: If the huge increase in federal caseloads required the Court to create doctrines to restrict federal jurisdiction, federalism principles suggested that such limits should reduce the number of “Controversies” involving state law (such as those involving diverse parties), not “Cases” arising under the U.S. Constitution. See id. at 1324–41. In this Article, I am making a different point: that the proper exercise of “judicial power” in our system of separation of powers might justifiably lead courts to decline Congress’s invitation to grant universal standing to sue under federal statutes, if such standing would increase federal dockets to an unmanageable size.

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43 This idea was unveiled in Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., concurring).

44 I was the first scholar to note that the word “case” derives from the Latin root casus (a chance occurrence).  See Robert J. Pushaw, Jr., Article III’s Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 Notre Dame L. Rev. 447, 472 n.133 (1994).  I did not, however, explore the significance of that insight in determining the likely meaning of “Cases” in Article III.  Rather, I argued that the Framers used this word to refer to a cause of action requesting a remedy for the alleged violation of a legal right in which a court determined legal questions, guided by precedent.  See id. at 472–79 (citing historical sources).  More generally, I contended that the Framers employed the different terms “Cases” and “Controversies” to signify the distinct primary function that federal courts would be expected to perform—expounding laws of national importance in “Cases,” while acting as impartial umpires in resolving “Controversies.”  See id. at 449–50, 472–84, 487–92, 493–511.

In this Article, I adhere to this conception of “Cases” but develop in detail the logical implications of my discovery about the Latin origins of the word, which Professor Stearns has neatly summarized: “Litigation presents courts with the opportunity—and duty—to resolve the underlying issues necessary to deciding those cases, which, by chance, happen to be presented.”  Maxwell L. Stearns, Constitutional Process: A Social Choice Analysis of Supreme Court Decision Making 165 (2000) (citing Pushaw, supra note 44, at 472 n.133).  I elaborate upon the meaning of “Cases” in Part III.a.1.

45 Maxwell Stearns has reached a similar conclusion based not upon a study of the historical meaning of Article III, but rather by applying economic “social choice” theory.  See Stearns, supra note 44, at 37–38, 157–80, 190–91, 257–78.  He contends that parties often seek to manipulate the evolution of substantive legal doctrine by bringing lawsuits in a specific order with the goal of obtaining a favorable ruling in the initial case and, with that precedent fixed, extending that holding in later decisions.  See id. at 177–80.  Stearns argues that the Court developed standing doctrine to thwart litigants’ attempts at such “path manipulation” by ensuring that the sequence of cases is presumptively determined by fortuitous events beyond a plaintiff’s control that directly injure her in an individual way.  See id. at 23–24, 157–62, 177–80, 190–91, 198, 204, 208–11.  Stearns asserts that this use of standing promotes a conception of separation of powers that sharply differentiates Congress’s “legislative power”—to make laws according to its own agenda and timetable by aggregating its members’ policy preferences—from the courts’ “judicial power,” which can legitimately be exercised (with any necessary lawmaking) only at the behest of a plaintiff who has been injured at random.  See id. at 158–60, 164–66, 198–211.  According to Stearns, the Court did not explicitly recognize that it was requiring fortuity to reduce path manipulation and thereby advance this normative conception of separation of powers, but rather devised imperfect proxies (like “injury in fact”) on a case-by-case basis that correlated to this goal.  See id. at 204–11, 257–59, 262–64, 269.

I set forth my agreements and disagreements with Professor Stearns in a 2002 essay.  See George & Pushaw, supra note 8, at 1265–66, 1270–89.  This Article updates and expands that critique based upon intervening cases and scholarship.  See infra Part III.

46 See, e.g., infra notes 238-242 and accompanying text.

47 See infra note 356 and accompanying text (discussing feigned lawsuits).  I anticipate two major objections to this proposal.

First, I recognize that some people might wish to pursue a lawful activity (such as hiking in a wilderness area) for its own sake, but they know that in doing so they will likely experience a defendant’s allegedly unlawful behavior.  Plaintiffs who choose to act in those circumstances have caused their own injuries and hence should not have standing to sue for damages at law.  They might, however, be able to proceed prospectively in equity, which is entrusted to judicial discretion.  Courts should exercise that discretion by adopting a presumption against granting standing unless plaintiffs establish their desire to pursue an activity for its own sake, their inability to do so because of the defendant’s legal violation (which was beyond their control), and their suffering of an injury significant enough that a reasonable person would be moved to sue.  Moreover, if the remedy sought is an injunction, plaintiffs must also satisfy its demanding standards, such as showing an “irreparable injury” and the likelihood of future harm.  See infra notes 158, 183 and accompanying text.

Second, my suggested inquiry will sometimes require a difficult factual determination about a plaintiff’s motives.  Such judgments are not impossible, however, as evidenced by how frequently intent is at issue in legal proceedings.  In close cases, the dispositive factor should be whether Congress intended to grant standing narrowly or broadly.  Thus, where a law such as the AWA provides for agency enforcement, courts should be reluctant to confer standing on private parties, particularly on those whose only asserted injury is “aesthetic.”  Conversely, where a statute such as the ESA contains a citizen-suit clause, judges should presume Congress sought the maximum constitutional level of standing and therefore give the plaintiff the benefit of the doubt.  Again, however, it is never appropriate to allow people to invoke a statute (even one with a citizen-suit provision, like the ESA) to manufacture a lawsuit and waste the resources of the federal judiciary (and defendants) merely to air policy gripes, as has occurred in cases like Ringling BrothersSee supra notes 30-33 and accompanying text.

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50 To illustrate, if one of Michael Vick’s unlawfully abused fighting dogs got loose and attacked me, it would be clear that he caused my personal injuries and that they can be redressed by money damages to pay for medical expenses and other losses.

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