Unpacking Third-Party Standing

Abstract

Third-party standing is relevant to a wide range of constitutional and statutory cases. The Supreme Court has said that, to assert such standing, a litigant must ordinarily have a close relationship with the right-holder and the right-holder must face obstacles to suing on their own behalf. Yet the Court does not seem to apply that test consistently, and commentators have long critiqued the third-party standing doctrine as incoherent. This Article argues that much of the doctrine’s perceived incoherence stems from the attempt to capture, in a single principle, disparate scenarios raising distinct problems of both theory and practice. The Article “unpacks” third-party standing in two respects. First, it identifies true third-party standing problems by distinguishing them from first-party claims, largely by reference to the “zone of interest” concept. If litigants fall within the zone of interests of the substantive right they wish to invoke and they have an injury-in-fact, they may rely on their own first-party rights for standing. If they do not fall within the zone of interests, then they must rely on the rights of third parties. Second, the Article distinguishes among three types of parties invoking third-party standing: directly regulated parties, collaterally injured parties, and representative parties. The results in the Supreme Court’s third-party standing cases tend to track these distinctions, and we argue that it is time for the Court to recognize those distinctions in doctrine. The Article also rejects prior efforts by scholars to posit a general “valid rule” requirement as a way of reconciling the cases, an approach that we contend is both under- and over-inclusive. The Article concludes by highlighting aspects of modern litigation practice that may need revision in light of the unpacked third-party standing doctrine.