Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Federal courts must sometimes decide whether a litigant who has not suffered an injury-in-fact may request judicial relief on behalf of an injured third party who has not appeared before the court. The presumption is that an uninjured litigant lacks standing to sue and cannot raise claims on behalf of a third party.1 The Supreme Court, however, has at times permitted this form of “representational standing,” allowing certain relationships between an uninjured litigant and an injured third party to overcome that presumption.2 Thus, for example, courts may permit representational standing when a formal association seeks to bring suit on behalf of its members;3 a state sues on behalf of its citizens;4 a plaintiff asserts a claim assigned to it by another party (e.g., a claim assigned to it by the government under a qui tam5 provision);6 or an agent brings suit on behalf of its principal.7 Such issues may also arise when a party brings a facial challenge to a law on First Amendment grounds, arguing that although the party itself is not subject to the law, it would be unconstitutional for the government to apply it to third parties with which the litigant has some form of close relationship (e.g., a business relationship).8

Footnotes

1

United Food & Commercial Workers Union Local 571 v. Brown Grp., Inc., 517 U.S. 544, 557 (1996). The foundational case for the general bar on third-party standing is Yazoo & Miss. Valley R.R. v. Jackson Vinegar Co., 226 U.S. 217, 219–20 (1912) (holding that a railway company could not assert the rights of hypothetical third parties in a challenge to a Mississippi statute providing a penalty for lost or damaged freight). See also Sec’y of State of Md. v. Munson Co., 467 U.S. 947, 947 n.5 (1984) (noting that third-party standing is disfavored in part due to “Art. III’s requirement that a plaintiff have a ‘sufficiently concrete interest in the outcome of the suit to make it a case or controversy,’” and in part due to the prudential concern that “if the claim is brought by someone other than one at whom the constitutional protection is aimed,” it may be “an abstract, generalized grievance that the courts are neither well equipped nor well advised to adjudicate” (citations omitted)).

2

United Food & Commercial Workers Union Local 571, 517 U.S. at 557 ( “[T]he entire doctrine of ‘representational standing’ . . . rests on the premise that in certain circumstances, particular relationships (recognized either by common-law tradition or by statute) are sufficient to rebut the background presumption (in the statutory context, about Congress’s intent) that litigants may not assert the rights of absent third parties.” ) (internal citations omitted). Notably, the concept of representational standing, which involves a litigant who has not suffered an injury-in-fact bringing suit on behalf of an injured third party, differs from the issue of “third-party” or jus tertii standing. The latter concept, which is discussed in more detail below, is a prudential doctrine that refers to a situation in which an injured party asserts the rights of someone who is not before the court as part of the legal theory underlying its claim or defense. An example of a case concerning third-party standing is Eisenstadt v. Baird, in which the Court held that a person convicted for distributing a contraceptive device to an unmarried woman had standing to assert the constitutional rights of unmarried persons denied access to contraception when challenging the Massachusetts law under which he was convicted on equal protection grounds. E.g., 405 U.S. 438, 445–46 (1972) (holding that an advocate of contraception convicted for giving a contraceptive device to an unmarried woman had standing to assert the rights of unmarried persons denied access to contraception, as such persons were not themselves subject to prosecution and would unlikely be able to assert their constitutional right to use it). For more on third-party standing, see ArtIII.S2.C1.6.9.3 Third Party Standing.

3

E.g., Int’l Union v. Brock, 477 U.S. 274, 290 (1986).

4

E.g., Massachusetts v. EPA, 549 U.S. 497, 520 (2007).

5

“Qui tam is short for the Latin phrase qui tam pro domino rege quam pro ipso in hac parte sequitur, which means ‘who pursues this action on our Lord the King’s behalf as well as his own.’” Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 768 n.1 (2000). Qui tam lawsuits allow a private party to enforce a law by acting as a “private attorney general.” John C. Coffee, Jr., Rescuing the Private Attorney General: Why the Model of the Lawyer as Bounty Hunter Is Not Working, 42 Md. L. Rev. 215, 215–16 (1983) (providing an overview of the concept of private attorneys general).

6

E.g., Vt. Agency of Nat. Res., 529 U.S. at 778.

7

E.g., Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 271 (2008).

8

E.g., Sec’y of State of Md. v. Munson Co., 467 U.S. 947, 958 (1984). Issues of representational standing may also arise in the context of class action lawsuits (i.e., lawsuits by representative parties on behalf of all members of a class of similar plaintiffs that have aggregated their claims in one case). See, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 803–06 (1985) (determining that class action defendant had standing to challenge a Kansas Supreme Court judgment rendered against it on the grounds that the judgment would bind the oil and gas company that would not bind all potential plaintiffs because the company “had a distinct and personal interest in seeing the entire plaintiff class bound by res judicata just as [it] is bound” ); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 403–04 (1980) (holding that a proposed class representative retained a personal stake sufficient for the representative to appeal a court’s ruling denying his class certification motion even though the named plaintiff’s substantive claim had expired); Sosna v. Iowa, 419 U.S. 393, 402 (1975) (determining that a “live controversy” existed for purposes of Article III standing “between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff ha[d] become moot” ).