Greetings and salutations! On today’s sojourn into the deep, dark, recesses of the law on Loki’s Law Blog, we will discuss an issue that bedevils the lay person and the attorney alike. Something so simple we expect a toddler to do it, but so difficult that it constantly arises in federal litigation.



Now, it is entirely possible that you’ve heard of this, “standing,” thing. Perhaps, while your eyes were glazing over reading about something something ... emoluments .... something something .... lawsuit against Trump ... you heard, “But the lawsuit might be dismissed because of standing.” And you thought to yourself, “Self. What are they taking about? Are the plaintiffs in wheelchairs? Isn’t it cruel, and a likely violation of the Americans with Disabilities Act, to dismiss a lawsuit just because the plaintiffs can’t stand? I mean, there are many things I can’t stand. Clowns. Hippies. Mimes. Three-camera sitcoms. But those aren’t reasons to get a case dismissed! Well, except mimes.”


In order to understand what standing means, you first have to understand what “jursidiction,” and, specifically, “subject matter jurisdiction,” mean. For a federal court to hear your case, the court must have subject matter jurisdiction (“SMJ”) over the action. If it doesn’t, the judge can’t hear it. He’ll put his hands over his ears, close his eyes, and go “Na na na na na na,” while the Bailiff lights all of your pleadings on fire. Without SMJ, there is no federal case.

The usual issues regarding SMJ are simple; a federal court is one of “limited” jursidiction; in other words, you have to bring the right type of case in. It can be a case arising under federal law (a federal statute, or the Constitution). Or it can be a case where people from different states are suing each other for lots o’ money. Things like that. If you can’t fit your case in one of those boxes, then “Na na na na na na,” case dismissed.

But then along came the hippies. Yeah, you can blame them. For a long time, there had been questions about whether or not the “correct” party was bringing the action; or, put another way, whether the party had “standing” to bring the action. These questions became more pressing as various interest groups (the ACLU, the NAACP, the Sierra Club, Joe Bob Cooter’s Chicken Shack and Home of Segregated Restroom Facilities) began to file litigation. Eventually, the Supreme Court put the smack down and constitutionalized standing in a case called Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).


Justice Scalia, in that case, effectively said that standing was a Constitutional requirement (in other words, part of the Article III, or SMJ requirements),* and that for a plaintiff to pursue a case in federal court, they would have to meet three requirements:

1. Injury in fact. The Plaintiff must have been injured; a Plaintiff can allege, “The defendant smacked me with a baseball bat,” a plaintiff cannot allege, “The defendant will probably smack me with a baseball bat in a few years.”



2. Causation. The Plaintiff has to be able to allege that there is some causal connection between the wrongful conduct and the injury. Good: “The baseball bat injury hurt my head.” Bad: “The baseball bat injury got Trump elected.”

3. Redressability. Can the Court do anything about it? If there’s nothing that the Court can do, why bother?

Now, these three prongs have been elaborated on and further expanded by caselaw, but you can probably see something; it’s really, really, really easy to show that you have standing. So easy, that the two primary arguments people make (because people argue, and we live in a Manichean universe where everything can be separate into two warring factions) are the following:


a. Anti-standing (kick them while they’re down!). Standing is so easy, so why bother having a rule? After all, it only kicks out a few cases, and those are probably super-duper important ones.

b. Pro-standing (prop them on up!). Standing is so easy, that if you can’t get it, you’re probably doing something wrong.

The best way to look at standing, moving away from the legal jargon, is this- the Courts want the correct parties to litigate the issues. Not officious busybodies. Imagine you’re sitting back in your trailer in Georgia, knocking back a tall, cold, American brewski, watching the news, and you see something about the pollution in Alaska. Listen, bud. No one cares how deeply that broadcast moved you, no one cares how cool your three-wolf T-shirt is, you don’t get to file that suit. You don’t live in Alaska. You aren’t affected by the pollution. And, to be honest, you really need to move out of that trailer; nothing to do with standing, just some life advice. You don’t have standing. Let someone else bring the lawsuit.



In today’s society, these issues can get complicated, because mass media and the internet often reports about certain types of wrongdoing, getting people whipped up into a “OMG someone needs to file a lawsuit!” frenzy. But the federal courts don’t care about how many tweets you have read, how many facebooks posts you have liked, or whether or not THIS IS THE WORST THING EVAR AND MUST BE STOPPED11!!!!!

They just want to know if the bad man touched you; because if he didn’t, you don’t have standing. “Na na na na na na na na.”

*Sidebar. While Lujan is the seminal case that arguably “constitutionalized” standing, many important standing cases occurred prior to Lujan. Such as Flast (taxpayer standing for establishment cases) and SCRAP (letting hippies get away with not having standing). Standing was always an issue; Lujan, however, truly empowered federal judges to start tossing cases like rotten eggs at the unpopular kids’ house.