Standing Doctrine

When people try to hold bad corporate or government actors accountable through the legal system, they often run into a barrier: standing doctrine. This legal doctrine limits who may sue over misconduct—or, in other words, who gets to stand up and be heard in court. Specifically, a litigant must establish that they’ve been personally injured by the conduct they challenge before the court will even consider the merits of their claims.

For the federal courts, constitutional standing doctrine is based on Article III of the U.S. Constitution, which provides that the judiciary may only decide a “case or controversy.” The Founders did not want federal courts issuing purely advisory opinions about what the law requires when there is no actual dispute to resolve because that would encroach on the powers of the legislative and executive branches of government. (Many state courts follow this approach as well, but some states have more generous standing rules.)

The problem is that large, for-profit corporations and government entities have pushed courts to adopt a much narrower interpretation of “case or controversy” than the Founders ever intended, limiting access to the federal court system. A person can no longer go to court and allege that they have been treated unlawfully. Instead, a person must demonstrate that they suffered a “concrete” and “particularized” injury that is “traceable” to the defendant’s action and that can be “redressed” by a favorable decision. Courts have interpreted these terms in convoluted, contradictory ways that make standing determinations unpredictable and subjective—and make large-scale challenges to harmful behavior harder to bring.

For example, consumers that have had their legal rights violated in a serious or dangerous way, but have suffered intangible or probabilistic harms—like a violation of their data privacy, the denial of information they are legally entitled to, or a heightened future risk of harm—will often be kicked out of court on the grounds that they have not suffered a sufficiently “concrete” injury. Similarly, the “particularized” harm requirement makes it hard for people to seek redress for diffuse harms to the public, like corruption or environmental degradation. Even those who have suffered tangible harms may have their cases dismissed simply because they don’t have access to the facts necessary to establish individual standing or they didn’t allege such facts in the proper manner. As Justice Harland once said, standing is “a word game played by secret rules.”