STANDING, EQUITY, AND INJURY IN FACT.

• Author: Young, Ernest A.
• Position: Response to article by Samuel L. Bray and Paul B. Miller in this issue, p. 1763 - The Nature of the Federal Equity Power

Most American lawyers, I suspect, know far too little about equity. We know that once upon a time, back in Merry Olde England, there were separate law and equity courts, but we also know that American jurisdictions have generally fused these two separate strands of law. Article III, after all, extended the federal judicial power to "all Cases, in Law and Equity," (1) and since 1938 the Federal Rules of Civil Procedure have proclaimed that "[t]here is one form of action--the civil action." (2) And so it has seemed safe to treat equity's traditions as largely anachronistic and its complexities as not worth plumbing. (3) That is true even among many of us who focus on procedure, jurisdiction, and remedies for a living. (4)

This neglect of equity and its distinctive qualities and traditions is surely a mistake. Sam Bray's work insists that "there has been a partial fusion of law and equity," (5) and Kellen Funk's historical study of fusion notes that "American jurisprudence to this day continues to rely on the traditional categories to determine whether certain rights or remedies are available to litigants." (6) Even scholars who stress the integration of law and equity point to equity's continuing importance. As Doug Laycock puts it, "[t]he distinctive traditions of equity now pervade the legal system. The war between law and equity is over. Equity won." (7) It is past time the non-equity-specialists paid more attention.

In that spirit, my contribution to this Symposium explores what the federal law of standing can learn from equity's distinctive traditions. Standing law does take account of equity in certain ways. That law largely accepts a connection between justiciability, the merits, and remedies. (8) A plaintiff's injury in fact, necessary to satisfy Article III, must not only be traceable to the defendant's conduct but also redressable by the requested relief (9)--thus necessitating an inquiry into what relief may be available. And separation of powers or federalism concerns familiar to remedies law--such as whether a court should interfere with the enforcement discretion of executive officials or engage in ongoing supervision of state institutions--have often migrated forward to shape a court's view of the plaintiff's standing at the threshold of litigation. (10) Both individual jurists and commentators have sharply criticized the use of remedial law to shape standing, (11) but unless standing doctrine becomes a great deal more formalist than it currently is--a change few advocate--the cross-pollination of standing and remedies seems inevitable.

Equity has been curiously absent, however, from more foundational debates about standing's basic requirements. In particular, debates over the legitimacy and nature of the injury-in-fact requirement largely proceed as if all plaintiffs assert claims for legal relief. Hence, critics of the injury-in-fact requirement generally argue that courts assessing a plaintiff s standing should ask simply whether the plaintiff has a legal cause of action. (12) But Sam Bray and Paul Miller argue in this Symposium that causes of action are simply not a thing in equity. (13) If that is true, then it makes little sense to structure the Court's general standing jurisprudence, supposed to apply to legal and equitable claims alike, around the existence of a legal cause of action. After all, the overwhelming majority of cases that have shaped the Court's contemporary standing jurisprudence have involved claims for equitable relief.

This Essay takes as its starting point Professors Bray and Miller's observation that equity did not traditionally require a "cause of action." Instead, they say, equity focuses on a "grievance" that can motivate the court to intervene. (14) The precise meaning of an equitable grievance is not easy to pin down, but it does seem clear that it has less to do with legal rights to sue than with specific factual circumstances involving loss or unfairness to the plaintiff. Equity's general mission, after all, is often characterized as filling the gap arising when abstract legal rights fail to provide relief in particular, compelling circumstances. (15)

Equitable grievances, I submit, look a lot like injury in fact. To the extent that Court's standing jurisprudence defines Article III's requirements in line with traditional practice, (16) longstanding practice in equity may provide a firmer ground for injury in fact than does traditional practice on the law side of the house. The injury-in-fact-requirement for standing may be, in other words, further evidence of the "triumph of equity" that Professor Laycock has noted. (17) At a minimum, scholars of standing need to know a good deal more about equity.

1. THE DEBATE OVER INJURY IN FACT

   The "irreducible constitutional minimum" of standing under Article III is an injury in fact that is fairly traceable to the challenged conduct and likely to be redressed by the requested relief. (18) This requirement, while commanding the apparent assent of all recent Justices on the Supreme Court, (19) has long been under siege by academics (20) and, occasionally, lower court jurists. (21) Even if one doubts that any of this criticism is likely to persuade the Court to abandon the last half century of its standing jurisprudence, deepening our understanding of the injury-in-fact requirement may help answer unresolved questions concerning its contemporary application. In particular, the current Court remains divided over the ability of a "purely legal" injury to serve as injury in fact, and important cases raising that question continue to press for the Court's attention. (22) Doctrinal controversy now focuses on what counts as injury, rather than whether injury should be required--but either way we still need to clarify the meaning of the concept.

   The distinctive traditions of equity can help deepen our understanding of these issues. But it may help to begin by clarifying the Court's conception of injury in fact, how it arose, and why it remains controversial.

   1. The Movement from Legal to Factual Injury

      Our leading scholar of the cause of action, A.J. Bellia, has written that ?[a]t common law, there was no doctrine of standing per se. A case was justiciable if a plaintiff had a cause of action for a remedy under one of the forms of proceeding at law or in equity." (23) Likewise, cases concerning the justiciability of a plaintiff's claims during the nineteenth century focused on the legal merits--that is, whether the relevant common or statutory law provided the right kind of legal right or entitlement to review. (24) By the first half of the twentieth century, American courts were speaking in terms of "standing" and requiring either (1) that the plaintiff fell within the terms of a statute creating a right to judicial review (25) or (2) that plaintiffs alleged "'an invasion of recognized legal rights'... that the law conferred upon the plaintiff in particular." (26) As before, focus was on the presence of a legal right to sue--either by virtue of the invasion of a legally protected interest or specific conferral of a right to sue by Congress. (27) Scholars have argued over whether plaintiffs in this era generally also had to demonstrate a factual injury, (28) but this was not the focus of the operative legal test for standing. (29)

      All this changed with the Supreme Court's 1970 decision in Association of Data Processing Service Organizations, Inc. ?. Camp. (30) That case loosened considerably the requirement that plaintiffs show a cause of action or cognizable legal interest, instead asking only that they fall "arguably within the zone of interests to be protected or regulated" by the substantive laws they invoke. (31) At the same time, however, Data Processing required an "injury in fact, economic or otherwise." (32) The result, as Craig Stern has explained, was that ? [w]hereas standing used to require that the plaintiff have suffered an injury that gave rise to a cause of action, an injury at law, the present standing is said to require only injury-in-fact, some harm to the plaintiff not necessarily tantamount to legal injury." (33)

      One can best understand the shift from legal to factual injury against the background of changing relationships between courts, the executive agencies, Congress, and different sorts of private litigants. (34) American courts began to develop a distinct doctrine of standing in the early twentieth century, as progressive jurists like Louis Brandeis and Felix Frankfurter sought to insulate the nascent regulatory state from legal challenge. (35) A strict requirement of legal injury fit well with efforts to limit challenges by regulated entities, which would generally be able to show factual costs from government action but often lacked either protected legal interests or established rights to sue. (36)

      As battles over the New Deal receded into memory, however, progressives began to worry more about agency capture than legal challenge; they thus wanted to empower regulatory beneficiaries to use courts to force agencies to vigorously pursue the goals of progressive legislation. (37) Data Processings shift to a more permissive test of legal entitlement--the "zone of interests" test--tended to open the federal courts to these sorts of suits even when Congress had not acted to specifically authorize such suits. (38) Data Processing thus helped to foster a "public rights" model of adjudication, which featured plaintiffs in "public actions" asserting "broad and diffuse interests--such as those of consumers or users of the 'environment'--which do not involve the litigants' individual status." (39)

      At the same time, however, the Court was retreating from the full implications of the public rights model by insisting on injury in fact as a constitutional prerequisite for standing. (40) As noted already, the injury-in-fact requirement appeared in Data Processing itself, but its potential to restrict...