ARTICLE III AND PUBLIC CHOICE THEORY

Article III of the Constitution limits federal judicial power to deciding actual cases and controversies. The Supreme Court has construed these terms to require that federal court claims be ripe and not moot, that litigants who seek relief have standing, and that the cases neither call for advisory opinions nor present political questions. Beginning in the early 1970s, with the burger court, and continuing throughout the rehnquist court, the standing barrier has proved the most significant—and elusive—of these justiciability barriers.

Under the guise of standing, the Court has prevented litigants from raising the claims of others, claims that are diffuse, and claims that present an attenuated causal linkage between allegedly unconstitutional government action and harm to plaintiff. The Court has fashioned three constitutional prerequisites to Article III standing, all drawn from the common law of tort: injury in fact, causation, and redressability. In doing so, the Court has drawn criticism for applying the concept of injury in a seemingly inconsistent manner. In regents of the university of california v. bakke (1978), for example, the Court conferred standing upon a medical school applicant who challenged a state affirmative action program by characterizing his claimed injury as the opportunity to compete, even though he might have been rejected had the program not been in place. In contrast, by focusing on the attenuated causal linkage between the law challenged and the desired outcome, the Court in allen v. wright (1984) denied standing to the parents of African American public-school children who challenged an Internal Revenue Service tax policy, which, they alleged, subsidized "white flight." Had the Bakke Court embraced the Allen Court's causal linkage analysis, it could have denied standing, and had the Allen Court embraced the Bakke Court's opportunity-injury analysis, it could have conferred standing.

Public choice theory (and specifically social choice) provides a basis for modeling standing and the closely related doctrine of stare decisis. As the following cases illustrate, under certain conditions, the preferences of Supreme Court Justices are prone to the anomaly that public choice theorists call "cycling." In Washington v. Seattle School District No. 1 (1982), the Court struck down a Washington statewide ballot initiative limiting the circumstances under which local school boards could order racially integrative school busing. In crawford v. board of education (1982), decided on the same day, the Court upheld a California constitutional amendment limiting the circumstances under which state courts could order racially integrative busing. Despite these divided outcomes, five Justices, who split on the results of the two cases, formed an overlapping majority that viewed the cases as indistinguishable. If we assume strict adherence to precedent, when judicial preferences cycle as in these cases, the order—or path—in which cases are decided becomes critical to the substantive evolution of legal doctrine. Thus, had these two cases been decided a year apart, rather than on the same day, the outcomes in both would have depended on which case arose first, assuming that the Justices vote sincerely, meaning that they place precedent ahead of doctrinal preferences. While stare decisis thus renders legal doctrine "path dependent," that consequence is inevitable in a regime seeking stable doctrine. The greater problem, however, is the incentive among interest group litigants to try to manipulate the path of cases to influence doctrinal evolution.

The standing ground rules ameliorate the incentives to manipulate case orders as the vehicle to exert a disproportionate influence over doctrine, which is created by stare decisis. Each of the standing rules, and most notably the proscription on a third-party and diffuse-harm standing, can be translated into a presumptive requirement that the litigant be directly affected by a set of facts beyond his or her control as a precondition to litigating in federal court. Bakke and Allen are best understood as cases in which the Justices intuited whether factors commonly associated with path manipulation, or with traditional dispute resolution, predominated. While the standing ground rules do not prevent path dependency, an inevitable byproduct of stare decisis, they do ground the critical path of case decisions in fortuitous historical facts presumptively beyond the control of the litigants themselves. In an historical period when the Court's members were most prone to possessing cyclical preferences, the Court transformed its standing doctrine in a manner that substantially raised the cost to interest groups of attempting to manipulate the order of case decisions in an effort to exert disproportionate influence on the evolution of constitutional doctrine.

Maxwell L. Stearns
(2000)

Bibliography

Fletcher, William A. 1988 The Structure of Standing. Yale Law Journal 98:221–291.

Stearns, Maxwell L. 1995 Standing and Social Choice: Historical Evidence. Univeristy of Pennsylvania Law Review 144:309–462.

——1995 Standing Back from the Forest: Justiciability and Social Choice. California Law Review 83:1309–1413.

——2000 Constitutional Process: A Social Choice Analysis of Supreme Court Decision Making. Ann Arbor: University of Michigan Press.

Winter, Steven L. 1988 The Metaphor of Standing and the Problem of Self Governance. Stanford Law Review 40:1371–1516.