An Organizational Account of State Standing

Katherine Mims Crocker*

Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.

Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like at least one other category of so-called “aggregate litigants,” organizational plaintiffs, than the literature has previously recognized. In short, one can see state standing and organizational standing as fitting either side by side (in the sense that state standing runs parallel to organizational standing) or hand in glove (in the sense that state standing represents a species of organizational standing). And a preliminary comparison of institutional features suggests that state plaintiffs should have at least as strong a claim to standing in federal court as associational plaintiffs do.

These contentions lead to the conclusion that if the legal community feels comfortable with the wide scope of organizational standing, it should feel equally—and probably more—comfortable with the wide scope of state standing.

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© 2019 Katherine Mims Crocker. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for
educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Assistant Professor of Law, William and Mary Law School. For helpful comments and conversations, thank you to Sam Bray, Aaron Bruhl, John Duffy, Tara Grove, Andy Hessick, Ben Johnson, Alli Larsen, Maggie Lemos, Bill Mims, Dick Pierce, Jack Preis, Richard Re, Kevin Walsh, and participants in the Third Annual Junior Faculty Forum at the University of Richmond School of Law.