355. Vikramaditya S. Khanna, Toward a Functional Understanding of Standing, 03/2002.
Abstract: In this paper I provide a functional analysis of standing. The paper begins by focusing on a function for standing rules - to reduce or control undesirable litigation. However, there are many ways in which we could control or reduce undesirable litigation. We could permit anyone to initiate sue but limit remedies to only certain litigants, or we could limit remedies and restrict standing to only certain litigants, or we could deny remedies to and impose penalties on certain litigants while granting anyone permission to initiate a suit. There are a host of other possible responses as well. An important question is then: why choose to restrict standing as opposed to relying on these other ways of addressing undesirable litigation? This paper discusses this question.
After briefly defining undesirable litigation, I discuss the various methods of controlling undesirable litigation and note that they are all essentially supplements to the basic method of controlling undesirable litigation - denying undesirable litigants a remedy. It is when this basic method fails that there is a need to consider supplements such as restrictive standing rules or penalties on litigants. I discuss when the basic method is likely to fail and in each of those cases consider which supplement would be most desirable.
The analysis suggests that two factors are of great importance in determining which supplements to use. First, the likely number of difficult to deter undesirable litigants in a particular area of law and second, the relative accuracy of the various methods. If there are many difficult to deter undesirable litigants it may prove useful to rely on a restrictive standing rule to prevent them from bringing suit. Further, the more accurate a method is relative to its alternatives the greater the desire to rely on that method. These two factors, along with a few other matters (e.g., how easy is it to satisfy a standing rule), form an analytical matrix that one can use to analyze standing rules. There appears to be broad congruence between existing standing rules and the matrix developed in this paper.