Modern Article III standing doctrine requires a would-be plaintiff to demonstrate the existence of an injury-in-fact that is both fairly traceable to a defendant’s allegedly unlawful conduct and redressable by the courts.130
All three components of the test have generated uncertainty: courts frequently disagree as to whether a claimed injury is sufficiently concrete, whether the causal link between the injury and the claimed unlawful conduct is sufficiently direct, and whether a favorable judgment would be sufficiently ameliorative of the injury in question. These disagreements stem in part from competing conceptions of each component’s underlying requirements: How actual, particularized, and imminent must a claimed injury be to satisfy the injury-in-fact requirement? How does one measure the causal link between the injury and the challenged activity for purposes of the fairly-traceable requirement? How substantially must judicial relief alleviate the injury for purposes of the redressability requirement? But lurking beneath these disputes are important questions of characterization as well. Simply put, whether or not a claimed injury meets the Article III standard will sometimes depend on what that injury is understood to be.131
Consider, for instance, Professor Gene Nichol’s discussion of the standing determinations in Linda R.S. v. Richard D.,132
Warth v.
Seldin,133 and Simon v. Eastern Kentucky Welfare Rights
129. Id. at 615; see also id. at 612 (“An individual who opts not to purchase insurance from a private insurer can be seen as actively selecting another form of insurance: self-insurance.”). 130. E.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (setting out the elements of standing).
131. See, e.g., Cass R. Sunstein, Standing and the Privatization of Public Law, 88COLUM.L. REV. 1432, 1464 (1988) (noting that the “central problem” in many standing “cases is not whether there is a causal nexus among injury, remedy, and illegality; it is how to characterize the relevant injury”).
132. Linda R.S. v. Richard D., 410 U.S. 614 (1973). 133. Warth v. Seldin, 422 U.S. 490 (1975).
Organization134—three cases in which the plaintiffs alleged an injury based on their difficulties in obtaining access to a service or good.135
In
Linda R.S., the plaintiffs challenged the discriminatory enforcement of a state child support law, citing to the reduced availability of child support assistance as their alleged injury-in-fact.136 In Warth, the plaintiffs challenged a local government’s exclusionary zoning policy, citing to the reduced availability of housing as their injury-in-fact.137 And in Simon, the plaintiffs challenged the provision of favorable tax treatment to hospitals, citing to the reduced availability of medical services as their alleged injury-in-fact.138
All three cases, in short, involved plaintiffs seeking access to something and claiming that unlawful government activity frustrated their ability to obtain it. And all three cases foundered on causation/redressability grounds, with the Court concluding that the relief being sought—even if issued—would not do enough to alleviate the injuries in question.139
In one sense, these cases turned on the plaintiffs’ failure to demonstrate that ceasing the allegedly unlawful behavior would guarantee them access to the goods and services they sought: even with the requested injunctions in place, the Linda R.S. plaintiffs might still fail to obtain child support, the Warth plaintiffs might still fail to obtain housing, and the Simon plaintiffs might still lack access to medical services. But in another sense, their outcomes rested on contestable characterizations of the injuries that prompted these plaintiffs to bring suit. Nichol explains:
In Linda R.S., the Court refused jurisdiction because even a decree requiring nondiscriminatory enforcement would not ensure support. But why was obtaining the payment of child support considered the relevant injury? The mother in Linda R.S. sought to be treated on an equal basis with married mothers. Her injury—denial of equal treatment—would undoubtedly have been redressed by an affirmative decree requiring enforcement of child support obligations
134. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976).
135. Gene R. Nichol, Jr., Rethinking Standing, 72 CALIF.L.REV. 68, 79–82 (1984). 136. Linda R.S., 410 U.S. at 615–16.
137. Warth, 422 U.S. at 495–96. 138. Simon, 426 U.S. at 45.
139. See id. (“Speculative inferences are necessary to connect [the respondents’] injury to the challenged actions of petitioners.”); Warth, 422 U.S. at 506 (“[T]he record is devoid of any indication . . . that, were the court to remove the obstructions attributable to respondents, such relief would benefit petitioners.”); Linda R.S., 410 U.S. at 618 (“The prospect that prosecution will, at least in the future, result in payment of support can, at best, be termed only speculative.”).
against unmarried fathers. Similarly, the Warth plaintiffs sought not only to obtain housing in Penfield. They also asserted their interest in equal participation in a housing market not distorted by unconstitutional zoning practices. The denial of a meaningful opportunity to persuade others to construct low cost housing in Penfield, for example, would have been redressed by a determination that the ordinance was unconstitutional. The indigents in Simon had no objection to receiving hospital access, but the interest they asserted would more appropriately be described as having hospital decisions concerning the services offered to indigents accurately reflect an earlier incentive structure implicitly approved by the Congress. Again, that injury would have been redressed by the claim presented.140
And the puzzle becomes more puzzling when still other cases enter the mix. In Regents of the University of California v. Bakke,141 the Court found no causation or redressability-based bar to an applicant’s challenge to a medical school’s affirmative action program.142 As in
Linda R.S., Warth, and Simon, the plaintiff in Bakke could not definitively show that a favorable decision from a court would have resulted in his obtaining the service that he sought—namely, an education from the UC Davis Medical School. But that fact did not matter, the Court held, because the relevant injury suffered by Alan Bakke was simply his inability “to compete for all 100 places in the class.”143
And that injury, by definition, could obviously be redressed by a judicial order requiring that the school allow Bakke to compete for all 100 places in the entering class. Bakke might not ultimately gain admission to the program, but his injury had been characterized in a way that rendered that fact irrelevant. Bakke’s “opportunity-based” injury—namely, his inability to compete for class seats on a level playing field with others—could thus be certainly remedied, whereas the previous plaintiffs’ actuality-based injuries could not.144 The
140. Nichol, supra note 135, at 80 (footnote omitted); see also Cass R. Sunstein, Standing for Animals (With Notes on Animal Rights), 47UCLAL.REV. 1333, 1356 (2000) (noting that “to know whether the redressability requirements are met, it is necessary to know how to characterize the relevant injury”).
141. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). 142. Id. at 280–81 n.14.
143. Id.; see Nichol, supra note 135, at 81 (“If . . . the Warth plaintiffs could redress their injuries only by showing that they would actually obtain housing, and if the mother in Linda R.S.
was required to show that she would actually receive support payments, Bakke should have been made to prove that he would have gotten into medical school.”).
differences in outcomes therefore stemmed from antecedent differences in characterization.