Richard Re

Relative Standing

Georgetown Law Journal


Current standing doctrine purports to ask only whether plaintiffs have an adequate stake in seeking judicial relief. On inspection, however, the Supreme Court’s standing decisions often turn on a relative assessment of superiority. This pattern arises in cases involving “nontraditional” plaintiffs – that is, claimants who do not assert interests traditionally protected at common law. When evaluating these parties, the Court tends to afford standing to persons with the greatest stake in obtaining the requested remedy. Conversely, the Court tends to deny standing to nontraditional plaintiffs when more interested parties are available. This “most interested plaintiff” rule serves an array of values, fostering not only judicial restraint (because there is no need to resolve claims brought by inferior plaintiffs) but also concrete adverseness (because superior plaintiffs are the most concretely adverse claimants available in any given case). Relativity also has several advantages over an exclusively adequacy-based approach. First, it provides a compelling account of why the injury-in-fact requirement appears to shift from case to case and context to context. Second, it provides an improved, pragmatic justification for having standing requirements at all – something that is badly needed in light of the dubious explanations that the Court has so far offered. Finally, relative standing moderates the extremes of the Court’s existing jurisprudence. On a relative approach, gratuitous requests for standing must be denied; but, for every violation of law, there is always someone with standing to obtain relief. 


Richard M. Re, Relative Standing, 102 Georgetown Law Journal 1191-1250 (2014).

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