Standing Between Private Parties

Abstract

Standing is generally framed as a doctrine about plaintiffs. The basic question, the Supreme Court has said, is “whether the plaintiff is the proper party” to invoke the federal judicial power. Asking that question tends to obscure a natural corollary: Against whom? This Article attends to the other side of the “v.” It argues that suits against private parties should be treated differently from suits against government officials for standing purposes because these two types of suits raise different structural concerns. Notwithstanding its focus on plaintiffs, the Supreme Court has said repeatedly that standing is “built” on the “single basic idea” of “the separation of powers.” When a government official is sued, a particular structural problem arises: If a court entertains the suit, it will be put in the position of supervising another branch of the government. And without some sort of injury requirement, the political branches might be subjected to continuous judicial oversight. As a historical matter, Article III standing doctrine developed primarily in this context. But the structural concern prompted by that context is absent when one private party sues another private party. There is no prospect that such a suit will yield a remedy against a government official. The suit may, of course, raise other constitutional problems, but those other problems should not be shoehorned into standing—an avowedly transsubstantive jurisdictional doctrine that derives from Article III. This theoretical claim is bolstered by a striking fact: until 2020, the Supreme Court had never dismissed a case for lack of Article III standing when the defendant was a private party on the ground that the injury alleged was insufficient. And, as it followed this pattern, the Court was notably more generous in recognizing standing in cases against private parties than in cases against governmental parties. But the Court recently broke this pattern. In two closely divided opinions, the Court held—for the first time—that private parties could not sue other private parties because the injuries alleged were inadequate. Congress’s attempt to authorize those suits thus violated Article III. This paper critiques those decisions, situates them in the broader arc of the development of standing law, and surveys the prospects for doctrinal reconstruction. To do so, it proposes a novel framework to return the law of standing to its historical and conceptual moorings. Under that framework, standing doctrine should not limit Congress’s (or the states’) power to authorize lawsuits between private parties in federal court.