AuthorElliott, Heather


The Supreme Court interprets Article III's case-or-controversy language to require a plaintiff to show injury in fact, causation, and redressability. A plaintiff who meets that tripartite test has standing to sue and thus a personal stake in pursuing the litigation. Accordingly, in Sierra Club v. Morton, the Supreme Court prohibited pure private attorneys general: litigants who would sue without the requisite personal stake. This limitation extends to organizations. They, too, must show standing on their own account or, under Hunt v. Washington Apple Advertising Commission, identify a member with Article III standing and show how the lawsuit is germane to the organization's purpose.

Yet when Hunt interacts with the complexities of modern standing doctrine, it becomes clear that many associations, particularly those that are large or have broad purposes, can show standing for virtually any lawsuit. Moreover, recent scholarship has plausibly suggested that municipalities can be treated as associations under Hunt; municipal purposes are so broad, and some cities are so big, that they could litigate almost any case they wish. But the purpose of the ban on pure private attorneys general is to avoid giving any plaintiff a roving commission to enforce the law. Thus, Sierra Club and Hunt are in serious tension.

This unnoticed conflict is further evidence of the notorious incoherence of Article III standing itself and might sensibly trigger a rethinking of the entire doctrine. Such reform seems highly unlikely, however, given nearly fifty years of standing's reign. Alternatively, Congress--which is far better placed than the courts to make necessary factual determinations--could take steps to resolve the conflict between Sierra Club and Hunt. But Congress has other priorities. More modestly, the Court could make some changes at the margins of Hunt and Sierra Club, to ameliorate the tension between the two strands of standing doctrine.

INTRODUCTION I. ARTICLE III STANDING A. Standing Basics 1. Basic Doctrine 2. Basic Criticisms B. Private Attorneys General 1. The Idea of the Pure Private Attorney General 2. The Ban on Pure Private Attorneys General 3. "Impure" Private Attorneys General C. Associational Standing 1. Direct Standing for Associations 2. Member-Derived Standing for Associations a. Member with Standing b. Case Can Proceed Without Member c. Organizational Purpose i. Organizational Mission ii. Germaneness 3. Issues with Associations as Representative Litigants II. PURE PRIVATE ATTORNEYS GENERAL UNDER HUNT A. Organizational Size and Breadth B. Cities 1. Membership in Cities 2. Cities' Purposes 3. Cities as Pure Private Attorneys General C. Conflict in the Doctrine 1. The Tension Between Hunt and Sierra Club 2. This Is Typical Standing Incoherence III. CLEARING UP THE CONFUSION A. The Court Could Abandon Standing Doctrine B. Congress Would Do It Better but Will Not 1. Congress's Authority to Act 2. Congress Has Many Options 3. Congress Is Unlikely to Act C. Judicial Fixes for Hunt CONCLUSION INTRODUCTION

As interpreted by the Supreme Court, Article III of the United States Constitution permits lawsuits to proceed in federal court only if the plaintiff has standing to sue: the plaintiff must have suffered an injury in fact fairly traceable to the actions of the defendant and redressable at least in part by the court. (1) Thus, if hypothetical plaintiff Chris Lee is injured by pollutants emitted from a coal-fired power plant, Lee would have standing to sue the plant for violations of the federal Clean Air Act. (2)

Moreover, an environmental group in that same area could also sue to enforce the Clean Air Act either by showing standing on its own account or by relying on Lee's standing. (3) Hunt v. Washington Apple Advertising Commission permits an organization to sue when it has a member with standing and when the purpose of the suit is germane to the group's purpose. (4)

But if Lee is not injured by the plant's emissions and sues merely to punish the company for violating the law, the suit will be dismissed for lack of standing. In Sierra Club v. Morton, the Supreme Court rejected the idea of a pure "private attorney general": a litigant who, though having no concrete stake in the litigation, would nonetheless be permitted to sue wrongdoers to ensure that the law was obeyed. (5)

The term pure "private attorney general" contrasts the private litigant with state or federal attorneys general, who are generally able to sue to enforce the law and protect the public interest. (6) So, for example, the United States can sue to enforce violations of the Clean Air Act anywhere in the country, (7) but a private party who lacks Article III standing may not. Nor may associations litigate as pure private attorneys general; if an organization lacks standing on its own account or under Hunt, it fails the Article III test just as an individual would. (8) Such pure private attorneys general, the Court has said, raise the specter of roving enforcers of the law who would take the courts far beyond their Article III purview. (9)

But what about an organization with a sufficiently broad purpose and a sufficiently large membership? Would not such an organization be able to satisfy Hunt in an almost infinite number of situations? After all, a very large organization is likely to have, somewhere in its membership, someone who has suffered the relevant harm. If the organization also has an extremely broad purpose, then, for virtually any topic, it could meet Hunt's requirement that the lawsuit be germane to its purpose. Such an organization would seem to be able to bring any lawsuit it wanted, becoming a roving enforcer of the law.

This is not simply a theoretical question. AARP, for example, has thirty-eight million members and a very broad mission (10) and has been held to have standing under Hunt. (11) And some scholars have recently made plausible arguments that municipalities have associational standing under Hunt. (12) Such standing would be very broad for some cities: New York City, for example, has a population of about 8.4 million and general home-rule powers, meaning it can act to protect the health, safety, and general welfare of its citizens. (13) Although there are presumably some limits on AARP and New York City at the margins, their standing to sue under Hunt can be vast.

Moreover, even smaller organizations can take advantage of modern standing doctrine to act nearly as pure private attorneys general. Organizations are free to recruit new members who have an injury in fact, allowing them to tailor membership to satisfy Hunt. (14) And courts have increasingly recognized injuries that affect large segments of the population (injury from increased risk of future harm, for example, or injury from procedural violations by regulatory agencies). So long as at least one of the many people suffering a risk-based or procedural injury is a member, an organization can predicate standing on that member. (15) A small organization with a broad enough purpose, then, could find Hunt standing fairly readily.

Hunt and modern standing doctrine thus interact to permit at least some associations--and perhaps many municipalities--to act as the forbidden pure private attorney general, a tension in the doctrine that this Article is the first to reveal. (16)

How can this conflict be solved, if at all? First, the Court could take this doctrinal conflict as further evidence of the bankruptcy of standing doctrine. Almost since its inception, critics have highlighted the doctrine's failings. (17) Standing doctrine has become increasingly "incoherent," (18) "manipulable," (19) and "doctrinal[ly] confus[ed]" (20)--what one scholar has called "a quagmire." (21) Accordingly, lower courts produce conflicting results on similar facts. (22) The previously unnoticed tension between the ban on pure private attorneys general and the doctrine of associational standing further highlights the incoherence and unpredictability of the doctrine. The Court could abandon standing doctrine and, as many have urged before, condition access to the federal courts on prudential and statutory considerations. But standing doctrine has been entrenched for nearly half a century, and the current Court seems unlikely to take such a revolutionary step.

Second, Congress could amend jurisdictional statutes to solve the conflict. Congress can consider systemic issues regarding access to and burdens on the courts, confer causes of action on appropriate plaintiffs, adjust associational standing to reflect concerns about federalism and separation of powers, and the like. (23) Of course, Congress is unlikely to prioritize such changes. (24)

Modest juridical modification of Hunt and Sierra Club seems to be the most likely solution. While courts are institutionally unsuited to draw the kinds of lines Congress could draw, (25) they could, for example, make a formal distinction between membership associations and municipalities (26) or add indicia of expertise to the Hunt requirements. (27)


The Article proceeds in three parts. Part I lays out the doctrinal background. Part II shows that some associations and municipalities are able to act as nearly pure private attorneys general, creating a genuine tension in the doctrine. (28) Part III then turns to potential solutions.


    Article III assigns to the Judicial Branch the authority to resolve "Cases" and "Controversies." (29) Thus, the courts have come to observe both constitutional and prudential limitations on their jurisdiction arising from ripeness, (30) mootness, (31) the rule against advisory opinions, (32) and the political question doctrine. (33) In the last forty years, the Supreme Court has determined that "perhaps the most important of these" restrictions is the requirement that the plaintiff have standing to sue. (34) These justiciability doctrines together implement "the constitutional...

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