Informational regulation and informational standing: Akins and beyond.

AuthorSunstein, Cass R.
PositionFederal Election Commission v. Akins

As Government programs and policies become more complex and far reaching, we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition.... In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before....(1)

If today's decision is correct, it is within the power of Congress to authorize any interested person to manage (through the courts) the Executive's enforcement of any law that includes a requirement for the filing and public availability of a piece of paper.(2)


It is often said that the American economy has been shifting from one based on industrial development to one based on the creation and dissemination of information.(3) Whether or not this is so, there can be little doubt that a number of statutes in the last forty years were designed to ensure disclosure of information, and that mandatory disclosure is an increasingly pervasive and important regulatory tool. Indeed, informational regulation, or regulation through disclosure, has become one of the most striking developments in the last generation of American law.(4)

Informational regulation takes several different forms. Sometimes the government attempts to improve the behavior of private industry by requiring companies to disclose information about, for example, toxic releases, the contents of food and drink, and workplace injuries. Prominent examples include the Emergency Planning and Community Right-to-Know Act(5) and regulations governing the disclosure of the nutritional content of food.(6) Here the goal is to fortify either market mechanisms or political checks on private behavior.(7) Sometimes the government attempts to control its own agents through compulsory production and disclosure of information; consider the National Environmental Policy Act of 1969 ("NEPA"),(8) the Freedom of Information Act ("FOIA"),(9) and the Federal Election Campaign Act ("FECA").(10) Here the goal is to allow more in the way of public monitoring of governmental decisions, with particular issues (insufficient environmental concern, unlawful behavior during campaigns, official corruption) receiving special attention.

Legal struggles between those seeking information on the one hand, and government or others required by law to disclose information on the other, promise to provide many of the most important public law cases in the next several decades. The outcome of these struggles will have significant consequences. Victories for those who seek to withhold information are important not only because they dispose of the case at hand, but also because they give similarly situated people, in both government and the private sector, a clear signal about whether they must disclose information outside of the context of litigated cases. This signal will inevitably affect behavior well before cases arise.

For many years it has been unclear whether, and under what circumstances, a citizen will have standing in federal court to seek access to information held by the government. FOIA gives standing to all persons to obtain a wide range of information;(11) there is no requirement that the information involve a particular citizen, or even be shown to be relevant to her professional or personal concerns. Mere curiosity appears to be enough. Anyone is entitled to obtain any information that FOIA makes public.(12) Is FOIA therefore unconstitutional? NEPA requires the government to compile and disclose environmentally relevant information before it proceeds with projects having a major impact on the environment.(13) But who, exactly, may sue to require preparation of an environmental impact statement ("EIS")? Is curiosity enough here as well? FECA imposes a wide range of reporting and disclosure requirements on all "political committees."(14) Does this mean that any American can bring suit against the Federal Election Commission ("FEC") to require it to enforce the law?

The Supreme Court has now started to sort out this area of the law. Federal Election Commission v. Akins(15) is by far the most important pronouncement on the general issue of standing to obtain information. More than that, it reorients the general law of standing in several significant ways. In particular, the Court appears to have held that any citizen has standing to sue under FECA; that Congress is permitted to grant standing to all or many citizens, even if they are seeking to redress a "generalized grievance"; that the key question, in cases involving information or anything else, is what the relevant source of law actually says; and that Article II is no barrier to suits brought by citizens whose interests are not substantially different from those of the citizenry as a whole.(16) The most important step here is the suggestion that Congress can overcome the barrier to "generalized grievances," for this barrier is likely to be crucial to plaintiffs seeking information.

At the same time, the Court's opinion marks a significant new development in the law of"redressability," a development that is in considerable tension with previous cases. And the Court's opinion raises or leaves open a host of new questions about the circumstances in which citizens may bring suits to obtain information. It is no wonder that Justice Scalia wrote a passionate dissent, suggesting that the Court's opinion violates not only Article III but Article II as well.(17)

Remarkably, the emerging law governing standing to obtain information has yet to receive academic attention. The basic purpose of this Article is to begin to fill this gap, above all by exploring the intersection between the law of standing and the wide range of statutes mandating public disclosure. In the process it will be necessary to offer an understanding of the extent to which disclosure of information has become a central part of the American regulatory state--as central, in its way, as command-and-control regulation and economic incentives. As we shall see, it is impossible to understand the standing questions without understanding the regulatory questions as well. As we shall also see, an understanding of the emerging law of standing to receive information has a set of implications for the law of standing in general.

The Supreme Court's decision in Akins is the vehicle for much of the analysis, because the Akins Court covers a strikingly wide range of standing issues, in a way that is full of implications for the future. My most general claim is that at least in information cases, the question of standing is for congressional rather than judicial resolution. It follows that whether someone has informational standing depends on what Congress has said. If Congress creates a legal right to information and gives people the authority to vindicate that right in court, the standing question is essentially resolved. Insofar as it recognizes this point, Akins appears to vindicate the passage from Justice Kennedy's important concurring opinion in Lujan v. Defenders of Wildlife, quoted above,(18) and in the process suggests that Justice Scalia's prophecy, also quoted above,(19) will eventually be proved correct.

This Article comes in four parts. Part I discusses the use of information as a regulatory tool, partly as a background for the question of standing, and partly as a brief, freestanding treatment of an important development in regulatory law. The basic point here is that informational strategies are displacing (and have significant advantages over) command-and-control approaches. In some contexts, however, they risk futility and excessive cost, partly because of the difficulty that people face in dealing with low-probability events.

Part II deals with Akins itself and outlines the several clarifications of, and departures from, current law. The argument here is that the Court has revised the "injury in fact" test so as to focus attention on what kind of harm Congress sought to prevent; in the process the Court has made clear, for the first time, that Congress can grant standing to someone who suffers a quite generalized injury. Part III evaluates the Akins Court's approach to informational standing, with particular emphasis on the relationships among standing, injury in fact, congressional instructions, and Article III. I argue that the Court's decision suggests the right approach for informational standing, but that the decision leaves open a number of questions, both practical and conceptual.

Part IV discusses the future, with reference to a number of actual and hypothetical cases. I attempt to show how an understanding of informational regulation sheds light on the question of informational standing. The most important claim is that if Congress creates an interest in receiving information, and gives people a right to vindicate that interest in court, then it has acted consistently with Article III. This claim bears in turn on the general law of standing and the whole notion of "injury in fact," especially, but not only, in the context of information. It suggests that whether there is an "injury" cannot be decided in the abstract, or solely by reference to the "facts"; it turns instead on positive law.


    In this Part I deal with the rise of informational regulation. At least a general understanding of this development is a prerequisite for an understanding of informational standing. In addition, it is worthwhile to have a sense of this important development in the fabric of the modern regulatory state, a development that promises to become all the more central in the coming decade, when there will likely be a great deal of experimentation in this direction.(20)

    1. An Overview

      Informational regulation is far from new to American law. At common law, sellers of goods and services face certain obligations of disclosure; thus a failure to convey relevant...

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