1. STANDING v. CAPACITY “A plaintiff must have both standing and capacity to bring a lawsuit. Coastal Liquids Transp., 46 S.W.3d at 884.
    1. In Dallas Fort Worth International Airport v Cox, Justice Richter of the Court of Appeals of Texas sitting at Dallas, wrote: "Standing focuses on the question of who may bring an action. To establish standing, a person must show a personal stake in the controversy. "Whether a party has standing is predicated upon either statutory or common law authority. If standing is claimed pursuant to a statute, we construe the statute to determine upon whom the Texas Legislature conferred standing and whether the claimant falls in that category. Under a common law analysis, the general test for standing requires a real controversy between the parties which will actually be determined by the judicial declaration sought...."A plaintiff has standing when he is personally aggrieved, regardless of whether he acts with legal authority...." Dallas Fort Worth International Airport v. Cox, 261 SW 3d 378 (2008)
      1. Under the Texas Constitution, standing is implicit in the open courts provision, which contemplates access to the courts only for those litigants suffering an injury. Specifically, the open courts provision provides: All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law. “… our state constitution contemplates that plaintiffs seeking redress in the courts must first demonstrate standing. Because the Texas Constitution requires the presence of a proper party to raise issues before the Court, standing is a threshold inquiry regardless of whether the plaintiff brings an individual or class action. See Tex. Ass'n of Bus., 852 S.W.2d at 444.” M. D. Anderson Cancer Center v. Novak, 52 S.W.3d 704; 2001 Tex. LEXIS 57; 44 Tex. Sup. J. 905 (Tex. 2001).
        1. Since standing is a Constitutional imperative in Texas to achieve subject matter jurisdiction, it cannot be altered by legislation or by contract. “We therefore hold that standing, as a component of subject matter jurisdiction, cannot be waived in this or any other case and may be raised for the first time on appeal by the parties or by the court.” Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440 at 445, 446; 1993 Tex. LEXIS 22; 36 Tex. Sup. J. 607 (Tex. 1993). “A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy [emphasis added]. See Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984); Pledger v. Schoellkopf, 762 S.W.2d 145, 146 (Tex. 1988). … We have noted that “the general test for standing in Texas requires that there ‘(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought.’” Id. at 446 (quoting Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722, 724 (Tex. 1955)).” Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659 at 661, 662; 1996 Tex. LEXIS 102; 39 Tex. Sup. J. 1049 (Tex. 1996).
    2. standing,n. A party's right to make a legal claim or seek judicial enforcement of a duty or right. To have standing in federal court, a plaintiff must show (1) that the challenged conduct has caused the plaintiff actual injury, and (2) that the interest sought to be protected is within the zone of interests meant to be regulated by the statutory or constitutional guarantee in question. — Also termed standing to sue. Cf. JUSTICIABILITY. [Cases: Action 13; Federal Civil Procedure 103.1. C.J.S. Actions §§ 57–63.] Black's Law Dictionary (8th ed. 2004) , Page 4401
      1. third-party standing. Standing held by someone claiming to protect the rights of others. • For example, in most jurisdictions, only a parent has standing to bring a suit for custody or visitation; in some, however, a third party — for instance, a grandparent or a person with whom the child has substantial contacts — may have standing to bring an action for custody or visitation. See GRANDPARENT RIGHTS. [Cases: Action 13; Federal Civil Procedure 103.4. C.J.S. Actions §§ 57–63.]
        1. “Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703 (1962)(Brennan, J.).
      1. The law of standing has its roots in Article III’s case and controv ersy requirement. Summers v. Earth Island Institute, 555 U.S. 488, 492-93 (2009); DaimlerChrysler Corporation v. Cuno, 547 U.S. 332, 340-41 (2006).
        1. The U.S. Supreme Court has established a three-part test for standing The “irreducible constitutional minimum of standing” requires the plaintiff to establish:.
          1. First ... an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent,” not “conjectural” or “hypothetical.” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Summers, 555 U.S. at 493.
          2. Standing must ex ist on the date the complaint is filed and throughout the litigation./7 / Davis v. Federal Election Commission, 554 U.S. 7 24, 7 34 (2008).
          3. Moreov er, standing cannot be conferred by agreement and can be challenged at any time in the litigation, including on appeal, by the defendants or, in some circumstances, by the court sua sponte./8/ While the Supreme Court rev iews standing sua sponte “where [it] [has been erroneously assumed below,” it does not ex amine standing “simply to reach an issue for which standing has been denied below,” a conclusion not challenged in the appellant’s petition for certiorari. Adarand Constructors Incorporated v. Mineta, 534 U.S. 1 03, 1 1 0 (2001 ). By contrast, courts of appeal are obliged to ex amine standing under all circumstances. See, e.g., Wyoming Outdoor Council v. U.S. Forest Service, 1 65 F.3d 43, 47 (D.C. Cir. 1 999).
          4. Finally , plaintiffs must demonstrate standing for each claim and each request for relief./9/ Davis, 554 U.S. at 7 34; City of Los Angeles v. Lyons, 461 U.S. 95, 1 05 (1 983).
          5. There is no “supplemental” standing: standing to assert one claim does not create standing to assert claims arising from the same nucleus of operativ e facts./1 0/ DaimlerChrysler, 547 U.S. at 353.
      1. The Court requires that plaintiffs establish that the challenged conduct caused or threatens to cause them an injury in fact to judicially cognizable interests. By establishing that they personally suffered injury , plaintiffs demonstrate that they are sufficiently associated with the controv ersy to be permitted to litigate it. The question of injury raises two questions – (1 ) what kinds of injuries count for purposes of standing and (2) how certain the injury must be if it has not y et occurred.
          1. The Supreme Court has had no difficultly determining that economic interests are legally protected interests./1 1 / Clinton v. New Y ork, 524 U.S. 41 7 , 432 (1 998). See also Vermont Agency of Natural Resources v . United States, 529 U.S. 7 65 (2000) (relator in qui tam action has standing to challenge injury suffered by gov ernment because Congress assigned relator an entitlement to a percentage of any monetary recov ery ).
          2. More difficult is determining when economic injury that has y et to occur is sufficiently imminent and likely to confer standing. The Court has been relativ ely forgiv ing in this regard. Economic injury need not hav e already occurred but can result from policies that, for ex ample, are likely to depriv e the plaintiff of a competitiv e adv antage or a bargaining chip./1 2/ Clinton, 524 U.S. at 432-34 (finding cooperativ e has standing to challenge v eto of tax benefit enacted to foster ability to purchase processing plants); Association of Data Processing Service Organizations Incorporated v. Camp , 397 U.S. 1 50, 1 54-56 (1 97 0) (data processing serv ice prov iders hav e standing to challenge decision to permit banks to prov ide such serv ices to other banks)
          3. Noting that states are to be giv en “special solicitude” in the standing analy sis because of their stake in protecting their “quasi-sov ereign” interests, the Supreme Court held that Massachusetts had demonstrated an economic injury in the recent “global warming” case./1 5/ Massachusetts v. Environmental Protection Agency, 549 U.S. 497 , 520 (2007 ).
          7. Indeed, acknowledging contrary authority under the Fair Housing Act, the Supreme Court recently held that the "person aggriev ed" right to sue prov isions in Title VII is narrower than Article III standing./42/ Thompson v. North American Stainless, 1 31 S. Ct. 863, 869-7 0 (201 1 ).
          8. Instead, the Court equated the "person aggriev ed" language should be interpreted similarly to the "zone of interest" test found in APA standing jurisprudence./43/ Id. at 87 0 (employ ee fired after his fiancee filed an Equal Employ ment Opportunity claim can sue for retaliation under Title VII).
          10. The Supreme Court has addressed an additional form of injury —other than economic, recreational, and aesthetic injury —of potential v alue to legal aid attorney s. In Defenders of Wildlife, plaintiffs sought standing on the ground that the Act in question created a procedural right in the form of interagency consultation that was allegedly v iolated. The Court rejected the v iew that any one could hav e standing to assert this abstract “procedural right.”/44/ Lujan v. Defenders of Wildlife, 504 U.S. 555 , 57 2 (1 992).
          11. Plaintiffs hav e, in short, standing to challenge the alleged v iolation of procedures so long as the procedures are designed to protect some concrete substantiv e interest of the plaintiff and that breach of those procedures are substantially probable to injure those interests./46/ Defenders of Wildlife, 504 U.S. at 57 3 n.8; Earth Island Institute, 555 U.S. at 496-97 . Compare Center for Biological Diversity v. U.S. Department of.C. Cir. 2009) (finding standing) with New Y ork Regional Interconnect Incorporated v. Federal Energy Regulatory Commission, 634 F.3d 581 , 587 (D.C. Cir. 201 1 ) (finding standing) and Center for Law and Education v. U.S. Department of Education, 396 F.3d 1 1 52 (D.C. Cir. 2005) (rejecting standing). Courts of appeal decisions apply ing “procedural rights” standing include Wyoming Outdoor Council v. U.S. Forest Service, 1 65 F.3d 43, 51 (D.C. Cir. 1 999) (holding that plaintiff may sue for the denial of procedural rights in the Forest Serv ice’s grant of authority to drill on federal lands ev en though there was “no certainty ” that the drilling would take place), and Moreau v. Federal Energy Regulatory Commission, 982 F.2d 556, 564 (D.C. Cir. 1 993) (plaintiffs had standing to contest the agency ’s failure to giv e them notice of proceedings and to hold an ev identiary hearing regarding the construction of a natural gas pipeline notwithstanding the plaintiffs’ failure to show that such pre-depriv ation safeguards would hav e changed the outcome). See also Salmon 12/31/12 Federal Practice Manual for Legal Aid Attorneys federalpracticemanual.org/book/export/html/3 52/222 Spawning and Recovery Alliance v. Gutierrez, 545 F.3d 1 220 (9th Cir. 2008); Defenders of Wildlife v. Environmental Protection Agency, 420 F.3d 946, 957 - 58 (9th Cir. 2005); Y esler Terrace Community Council v. Cisneros, 37 F.3d 442, 446-47 (9th Cir. 1 994); Florida Audubon Society v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1 996); Banks v. Secretary of the Indiana Family and Social Services Administration 997 F.2d 231 , 238-39 (7 th Cir. 1 993) (plaintiffs eligible for Medicaid hav e standing to challenge Medicaid agency ’s failure to giv e notice and hearing before deny ing reimbursement claims).,
          12. Otherwise, the claim of standing is regarded as nothing more than a generalized interest in the gov ernment’s compliance with laws./47 / See, e.g. Bensman v. U.S. Forest Service, 408 F.3d 945 (7 th Cir. 2005) (rejecting, in Appeals Reform Act case, informational injury as a sufficient substantiv e interest to warrant procedural injury standing).
          14. Once a cognizable injury has been asserted, the Supreme Court has long cautioned that the injury in fact be "actual and imminent, not conjectural or hy pothetical."/50/ Earth Island Institute, 555 U.S. at 493 (2009).
          16. One of the goals of public law litigation is to force the gov ernment to comply with the Constitution and federal statutes. In the absence of more specific injuries, plaintiffs hav e claimed that the Constitution confers upon all citizens the right to a lawful gov ernment and upon all federal tax pay ers the right not to be tax ed to support unlawful gov ernmental activ ity . In a largely unbroken line of cases, the Supreme Court has refused to permit litigation of these so-called citizen or 12/31/12 Federal Practice Manual for Legal Aid Attorneys federalpracticemanual.org/book/export/html/3 46/222 tax pay er suits./60/ The most recent Supreme Court case on this point is DaimlerChrysler Corporation v. Cuno, 547 U.S. 332, 341 -46 (2006), in which the Court rejected state and municipal tax pay er standing for the same reasons that it had done so in prior federal tax pay er standing cases. The only area in which the Supreme Court has approv ed of tax pay er standing is in certain suits challenging spending on grounds that it v iolates the Establishment Clause. Flast v. Cohen, 392 U.S. 83 (1 968), which established this ex ception has between frequently distinguished and narrowed. See Arizona Christian School Tuition Organization v. Winn, 1 31 S. Ct. 1 436 (201 1 ) (Arizona tax pay ers hav e no standing to challenge law permitting tax credits for contributions to organizations which prov ide scholarships to students attending priv ate and parochial schools, distinguishing tax credits from gov ernment ex penditures); Hein v. Freedom from Religion Foundation, 551 U.S. 587 (2007 ) (finding tax pay ers hav e no standing to challenge conferences sponsored by the President's Faith-Based and Community Initiativ es Centers because those offices were funded from general Ex ecutiv e Branch appropriations, distinguishing Flast v. Cohen, 392 U.S. 83 (1 968), in which plaintiffs challenged the distribution of funds to religious schools pursuant to Congressional spending power legislation); Bowen v. Kendrick, 487 U.S. 589 (1 988); Grand Rapids School District v. Ball, 47 3 U.S. 37 3 (1 985), overruled in part on other grounds by Agostini v. Felton, 521 U.S. 203 (1 997 ); Flast v. Cohen, 392 U.S. 83 (1 968). In DaimlerChrysler, the Court ex pressly refused to ex pand this ex ception to Commerce Clause challenges to state tax or spending decisions. DaimlerChrysler, 547 U.S. at 347 -48.
          17. In United States v. Richardson/61 / United States v. Richardson, 41 8 U.S. 1 66 (1 97 4). and Schlesinger v. Reservists Committee to Stop the War/62/, Schlesinger v. Reservists Committee to Stop the War, 41 8 U.S. 208 (1 97 4). the Court held that injury resulting from the allegedly unlawful ex penditure of tax monies did not confer standing because of the “‘comparativ ely minute, remote, fluctuating and uncertain’ impact on the tax pay er.”/63/
          18. With respect to the interest of citizens in lawful gov ernment, the Court repeatedly characterized the injury to plaintiffs as citizens as “remote,” “abstract,” “generalized,” and “undifferentiated,” rather than “concrete.” Because of this, the Court has held that this “motiv ation [to enforce the Constitution] is not a substitute for the actual injury ” required for standing./64/ Schlesinger, 41 8 U.S. at 226.
          19. The Court ex pounded on these principles in Warth v. Seldin, where the Court coined the phrase “distinct and palpable injury ” to capture the requirement that plaintiffs must plead more than a generalized or undifferentiated griev ance against the gov ernment./65/ Warth v. Seldin, 422 U.S. 490 (1 97 5).
          20. “Distinct” generally means that the challenged act or policy affects the plaintiff differently from citizens at large. “Palpable” means that the resulting injury is concrete and not abstract or hy pothetical. The Court ex plained in Warth that the prohibition against citizen standing and tax pay er standing did not deriv e from Article III. Rather, the requirements that a plaintiff suffer a distinct and palpable injury are “essentially matters of judicial self-gov ernance.”
          21. Thus, while the requirement of injury in fact is rooted in Article III, the requirement that the injury be distinct and palpable is a prudential limitation on standing created to effectuate the separation of powers. Because the requirement is prudential, Congress can dispense with it./67 / See, e.g., Raines v. Byrd, 521 U.S. 81 1 , 820 n.3 (1 997 ).
          22. The Court’s standing causation jurisprudence has been markedly inconsistent and offers few lessons for general application. The Court first articulated the requirements of causation and redressability in Linda R.S. v. Richard D./7 6/ Linda R.S. v. Richard D., 41 0 U.S. 61 4 (1 97 3). Plaintiff, an unmarried mother, sued to compel a local prosecutor to enforce the state’s criminal nonsupport statute against the father of her child. She asserted that her injury was the refusal of the child’s father to prov ide support and claimed the state’s refusal to enforce the statute against unmarried fathers v iolated the Equal Protection Clause. The Court held that the mother lacked standing because she did not show that enforcement or threat of enforcement of the statute would cause the father to make child support pay ments.”/7 7 / There was, in short, an insufficient showing that the state’s enforcement policy was the cause of her injury : the non-receipt of child support.
          23. Plaintiffs in Arlington Heights ov ercame standing problems by pay ing attention to detail. Rather than mount an abstract challenge to ex clusionary zoning practices on behalf of dev elopers who hoped to dev elop at some future time and tenants who hoped to rent somewhere, they identified a dev eloper and an indiv idual with specific injuries more closely traceable to city action. Because they pled a commitment to act if relief were granted, these plaintiffs also established a greater likelihood of redressability . By recognizing from the outset the importance of establishing that ex clusionary zoning caused the inability to dev elop or to rent, they ov ercame the Warth obstacle. Arlington Heights represents a wise response to Warth: to identify with precision the injury and to demonstrate the link between the injury and official action./82/ Env ironmental litigants in Duke Power Company v. Carolina Study Group, 438 U.S. 59 (1 97 8) also ov ercame Warth’s stringent causation requirement. By introducing the testimony of industry representativ es before congressional committees ex pressing their unwillingness to dev elop nuclear power without a liability cap, plaintiffs established that, but for the cap, the plants would likely not be built. When the utility company asserted it could proceed without the cap, plaintiffs introduced the company ’s letter to Congress, which said that its suppliers and contractors would not proceed without the cap. Thus, plaintiffs demonstrated that the cap caused the aesthetic injuries of which they complained.
          24. Eastern Kentucky Welfare Rights Organization presented a particular challenge to the plaintiffs because they needed establish a causal relationship between a policy and the actions of a third party . Causation is much 12/31/12 Federal Practice Manual for Legal Aid Attorneys federalpracticemanual.org/book/export/html/3 47/222 easier to show when it turns on the plaintiffs' own actions or decisions not to act. Friends of the Earth is a good ex ample. The Court did not require the plaintiffs to demonstrate that particular discharges into a riv er had caused them injury or increased their risk of injury . Rather, the Court found it sufficient that the discharges generally created “reasonable concerns” about their effects and that these concerns directly and reasonably affected plaintiffs’ recreational and aesthetic interests when plaintiffs chose not to use the riv er./85 / Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 1 67 , 1 83 (2000). In an interesting American with Disabilities Act case, the Ninth Circuit held that a plaintiff who resided sev eral hundred miles from a conv enience store, but who intended to return to the store when it became accessible had standing. Doran v. 7 -Eleven, Incorporated, 524 F.3d 1 034, 1 041 (9th Cir. 2008).
      1. A corollary to the Supreme Court’s requirement for standing—that the injury alleged be fairly traceable to the challenged conduct—is the separate requirement that the relief sought must redress the injury . In the great majority of cases the inquiry into causation and redressability are indistinguishable.
        1. What is peculiar about the Court’s concern for redressability is the elev ation of the question of remedial efficacy to constitutional status. While the scope of equitable relief to redress unlawful gov ernmental action has long been a matter of controv ersy , not until City of Los Angeles v. Lyons did the Court clearly articulate the requirement of remedial efficacy as a constitutional component of standing./88/ City of Los Angeles v. Lyons, 461 U.S. 95 (1 983). The plaintiff in Lyons sought damages and injunctiv e relief after being choked by city police officers. He alleged that the city permitted the police department to use unnecessary choke holds indiscriminately . The Court conceded that Ly ons had standing to sue for damages./89/ While Lyons and its progeny do not bar damage claims, those claims frequently are of only uncertain v alue. Indiv idual defendants assert the defense of qualified immunity , state agencies assert immunity under the Elev enth Amendment, and local gov ernmental bodies assert that the challenged action is not attributable to the gov ernmental body . See generally the discussion of immunities and municipal liability in Chapter 8 of this MANUA Howev er, the Court held that he lacked standing to seek injunctiv e relief. An injunction would not redress his injury because it was unlikely that he would be arrested and choked again. Lyons differs dramatically from Warth and Eastern Kentucky Welfare Rights Organization. In the earlier cases, the Court’s concern for remedial efficacy was a corollary to the requirement that the plaintiff establish that the injury was fairly traceable to defendant’s unlawful conduct. If the causal link between the defendant’s conduct and the plaintiff’s injury was tenuous, then it followed that injunctiv e relief against that conduct was unlikely to remedy the injury . Thus,L.
          1. Thus, the requirement of remedial efficacy grew out of the focus upon causation; whenev er causation was in doubt, so too was remedial efficacy .
          2. The ability of prospectiv e injunctiv e relief to remedy past wrongs dealt with in Lyons has echoes in Steel Company v. Citizens for a Better Environment./91 / Steel Company v. Citizens for a Better Environment, 523 U.S. 83 (1 998). In Steel Company, plaintiff sued a manufacturing firm for past v iolations of a federal statute requiring users of certain tox ic and hazardous chemicals to file forms with the Env ironmental Protection Agency that detail the name, quantity , and disposal methods of v arious chemicals. The Env ironmental Protection Agency alerted the firm that it had failed to file the forms for sev eral y ears. The firm then did so. Suing the firm for v iolating the statute, plaintiff asserted that the company ’s failure to file these forms precluded plaintiff from learning about its operations. Plaintiff sought declaratory , injunctiv e relief and civ il penalties. The Court found that plaintiff failed the redressability prong of the standing test. With respect to injunctiv e relief, plaintiff sought an order permitting plaintiff to inspect the firm’s facilities and records and requiring the firm to submit future forms to the Env ironmental Protection Agency . The Court held that such relief would not redress the injury prev iously caused when the firm failed to file the forms. Plaintiff did not allege that such a v iolation was going to happen again, and, without it, there was no basis for prospectiv e injunctiv e relief.
          3. The clear message of Lyons and Steel Company is to choose plaintiffs with care and, whenev er possible, to choose plaintiffs who hav e suffered recurrent application of the practice or policy at issue. In preparing a claim seeking injunctiv e relief based upon past conduct, the attorney must therefore articulate in the complaint the reasons why the risk of recurrence is more than speculativ e. When the acts or omissions promise to continue into the future, the less demanding perspectiv e of Massachusetts offers potentially v aluable support for creativ e redressability arguments./95/ With regard to redressability , the Court rejected the notion that plaintiffs lacked standing to seek a civ il money penalty simply because the penalty was to be paid to the gov ernment rather than to them. The Court deferred to Congress’ judgment that civ il penalties deter unlawful conduct. Because civ il penalties were seen as "likely " to discourage v iolators from continuing their misconduct and deter future v iolations, plaintiffs would achiev e redress ev en though they would not pocket the money
          4. R econciling these standing cases is not realistically possible. Howev er, the Court seems far more likely to find standing in cases pursuant to a specific federal statute which reflected Congress' intent and desire for judicial interv ention./96/ Pierce, supra note 7 3, §1 6.7 ; see also Federal Election Commission v. Akins, 524 U.S. 1 1 (1 998); Havens Realty Corporation v. Coleman, 455 U.S. 363 (1 982); and Trafficante v. Metropolitan Life Insurance Company, 409 U.S. 205 (1 97 5) discussed infra.
          5. Such statutes ev idence a legislativ e judgment that certain classes of plaintiffs suffer injury in fact when the statute is v iolated, that the v iolation causes the injury , and that such injury is redressable by the statutory remedies prov ided. These statutes also ex plicitly reflect Congress’ desire that courts interv ene to resolv e disputes arising from the statutes. As the Court recently put it, “Congress [can] define new legal rights, which in turn will confer standing to v indicate an injury caused to the claimant.”/97 / Vermont Agency of Natural Resources v. United States, 529 U.S. 7 65, 7 7 3 (2000)
          6. With the ex ception of Defenders of Wildlife, the Court found standing in each case arising from such statutes. When, howev er, the action does not arise from such statutes and there is no ex plicit legislativ e mandate for interv ention, the Court takes a much narrower v iew of standing. This is particularly true in cases, often inv olv ing constitutional questions, that pose challenges to the judicial function when standards of decision are not readily av ailable or discernible./98/ Pierce, supra note 7 3, §1 6.7 . This may ex plain cases like Warth v. Seldin, 422 U.S. 490 (1 97 5), Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1 97 6); Linda R.S. v. Richard D., 41 0 U.S. 61 4 (1 97 3) and certain tax pay er standing cases.
      1. Groups may hav e standing in a representativ e capacity , in an indiv idual capacity , or in both. A group has standing in a representativ e capacity when it represents the rights of its members. Such standing is an ex ception to the general prohibition on third-party standing. An association has standing in an indiv idual capacity (or qua group) when it asserts its own rights as an organization.
        1. Because Hunt v ests trial courts with some discretion in resolv ing claims of associational standing, the better practice when group standing appears tenuous is to join at least one named indiv idual as plaintiff in litigation brought by a group asserting associational standing. The presence of an indiv idual with standing should discourage the court—and opposing counsel—from delv ing deeply into the question of the group’s associational standing.
          1. Advantages and Disadvantages of Associational Standing
          2. Giv en that a group asserting representativ e standing will fare no better than its indiv idual members in establishing the requisite injury , one can fairly ask why associational standing is worth pursuing. The principal adv antage of group standing lies in its use to obtain the benefits of a class action without the bother of class certification. Those benefits include the opportunity to obtain a judgment in fav or of ev ery one adv ersely affected and to av oid mootness.
          3. Including a representativ e organization as a plaintiff may justify broader relief than would otherwise be av ailable in a single plaintiff action. It also may av oid mootness of questions tied to the passing stake in the controv ersy of indiv idual members.
          4. Representativ e claims thereby effectiv ely shift the case and controv ersy focus from whether a particular indiv idual has a liv e claim to whether any group member has a liv e claim. In this sense, representativ e standing resembles a class action without the problems posed by the requirement of class certification. Indeed, the Supreme Court recognized the propriety of representativ e group standing as an appropriate alternativ e to class action litigation for injunctiv e relief in International Union, United Automobile, Aerospace and Agricultural Implement Workers./1 1 7 / International Union, United Automobile, Aerospace, and Agricultural Implement Workers, 47 7 U.S. at 27 4. In that case, the gov ernment argued that the Court should modify Hunt to require representativ e groups to proceed under Rule 23. Rejecting that argument, the Court reaffirmed Hunt. Representativ e groups, the Court held, may be superior to an “ad hoc union of injured plaintiffs” proceeding as a class action.
          5. Because associations are often borne of a desire to v indicate common interests, they are likely to be adequate representativ es of their members and “can draw upon a preex isting reserv oir of ex pertise and capital.”/1 1 9/ The Court’s reaffirmation of associational standing suggests the potential v alue of such standing as an alternativ e to the v agaries of class certification. Representativ e group standing also may enable an indiv idual member who does not wish to appear as a named plaintiff, or does not hav e the resources to do so, to av oid direct participation in the lawsuit. For a v ariety of reasons, some indiv iduals are reluctant to sue in their own name. Howev er, their membership in a group can confer representativ e standing on the group. On the other hand, damages are not av ailable in cases inv olv ing associational standing. An organization may also see representativ e group standing as a dev ice to strengthen the organization within a community ./1 20/ Legal Serv ices Corporation (LSC) restrictions permit the representation of groups, corporations, and associations which meet financial eligibility requirements. 45 C.F.R. § 1 61 1 .6(a) .
          6. By appearing as the lead plaintiff in a major lawsuit, the group acquires v isibility ; when it wins, it acquires clout. While these considerations may appear irrelev ant to the dev elopment of a successful lawsuit, they may matter greatly to a fledgling organization.
      1. The leading case articulating the standing requirements for groups that sue in a representativ e capacity is Hunt v. Washington Apple Advertising Commission./99/ The Court stated in Hunt: Thus we hav e recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise hav e standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of indiv idual members in the lawsuit./1 00/ Id. at 343; see also Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 1 67 , 1 81 (2000) (association successfully demonstrates standing of members through declarations).
        1. The first prong of the Hunt test establishes a traditional standing inquiry grounded in Article III’s case or controv ersy requirement. The second prong is also constitutionally based and is designed to ensure that the association has both a concrete stake in the outcome of the litigation and will approach it with adv ersarial v igor. In contrast, the Supreme Court has ruled that the third prong is a prudential limitation in the same sense as third-party standing (see infra)./1 01 / United Food and Commercial Workers v. Brown Group, 51 7 U.S. 544, 556-57 (1 996) (holding that the prong “may guard against the hazard of litigating a case to the damages stage only to find plaintiff lacking detailed records or the ev idence necessary to show the harm with sufficient specificity . And it may hedge against any risk that the damages recov ered by the association will fail to find their way into the pockets of the members on whose behalf injury is claimed”).
          1. With respect to the first element, when an organization asserts standing in a representativ e capacity , Hunt does not require the organization to allege that it has suffered any injury . Rather, the organization must establish that those whom it represents hav e suffered an injury sufficient to confer standing./1 02/ See, e.g., Northeastern Florida Chapter of the Associated General Contractors v. City of Jacksonville, 508 U.S. 656, 666 (1 993) (injury -in-fact requirement in equal protection case does not require plaintiff to prov e that she would hav e obtained benefit in absence of challenged barrier).
          2. The organization need not establish that a substantial number of its members hav e suffered injury . Injury to a single member will do./1 03/ United Food and Commercial Workers, 51 7 U.S. at 555; ACLU of Ohio Foundation v. Ashbrook, 37 5 F.3d 484, 489-90 (6th Cir. 2004) (identify ing single member who appeared in a courthouse to challenge display there on Establishment Clause grounds); Consumer Federation of America v. Federal Communications Commission, 348 F.3d 1 009, 1 01 1 -1 2 (D.C. Cir. 2003). Ex amples of a case in which a plaintiff could hav e identified an injured member, but failed to so are Disability Rights Wisconsin v. Walworth County Board of Supervisors, 522 F.3d 7 96, 802-03 (7 th Cir. 2008) and National Alliance for the Mentally Ill v. Board of County Commissioners, 37 6 F.3d 1 292, 1 296 (1 1 th Cir. 2004).
          3. Howev er, that member must be specifically identified. In Earth Island Institute, the Supreme Court rejected the sufficiency for standing purposes of an assertion that some members of a large membership organization probably will ex perience harm./1 04/ Summers v. Earth Island Institute, 555 U.S. 488, 497 -98 (2009). Instead, submit affidav its from specific members directly affected by the challenged conduct. An issue commonly litigated relating to the first prong is whether the plaintiff is the sort of association entitled to av ail itself of associational standing.
          4. Voluntary membership organizations, such as trade organizations, plainly qualify ./1 05/ Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 342 (1 97 7 ).
          5. Organizations whose members are compelled to join, such as some trade unions and bar associations, may qualify as well./1 06/ Matters become more difficult when the association is not a traditional membership organization. The association may hav e standing if the association is “the functional equiv alent of a traditional membership organization.”/1 07 / Gettman v. Drug Enforcement Administration, 290 F.3d 430, 435 (D.C. Cir. 2002).
          6. That is, if the indiv iduals in the organization select its leaders, guide its activ ities, and finance its efforts, the association may hav e standing./1 08/ In Hunt, a state agency whose members were v oted on by apple growers was found to hav e standing. Hunt, 432 U.S. at 344. Ev en though not a membership entity , the agency serv ed the interests of a definable group of people, possessed “indicia” of membership organizations, and had a financial nex us with its constituents. See also Oregon Advocacy Center v. Mink, 322 F.3d 1 1 01 , 1 1 1 0 (9th Cir. 2003) (federally authorized protection and adv ocacy organization would hav e standing to sue on behalf of disabled constituents as an association, despite not hav ing membership, if one constituent had standing); Doe v. Stincer, 1 7 5 F.3d 87 9, 885 (1 1 th Cir. 1 999) (same). If not, the association lacks standing./1 09/ Gettman, 290 F.3d at 435 (magazine with readership lacks associational standing); Fund Democracy v. Security Exchange Commission, 27 8 F.3d 21 (D.C. Cir. 2002) (one-person business which represents an informal consortium of groups lacks standing); Association for Retarded Citizens of Dallas v. Dallas County Mental Health and Mental Retardation Board of Trustees, 1 9 F.3d 241 (5th Cir. 1 994) (public interest adv ocacy group lacks standing based solely on resources directed toward representing disabled persons in response to the actions of another party ). Second, Hunt also requires some community of interest between the group and the injured member. By requiring the interests that the suit seeks to protect to be germane to the organization’s purpose, Hunt limits the capacity of groups to define their purpose in terms sufficiently broad to permit the group to represent whoev er’s interests happen to suit it at a giv en moment./1 1 0/ See, e.g., Ranchers Cattlemen Action Legal Fund v. U.S. Department of Agriculture, 41 5 F.3d 1 07 8, 1 1 03-1 1 04 (9th Cir. 2005) (non-profit association representing cattle producers on international trade and market issues does not hav e standing to bring National Env ironmental Policy Act claims). This requirement has been described as “undemanding.”/1 1 1 / Humane Society of the United States v. Hodel, 840 F.2d 45, 58 (D.C. Cir. 1 988).
          7. Third, Hunt permits representativ e standing only when neither the claim nor the relief sought require the participation of an injured indiv idual. This element is ty pically satisfied when the plaintiff association seeks injunctiv e or declaratory relief generally benefiting the association and its members,/1 1 2/ International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America v. Brock, 47 7 U.S. 27 4 (1 986); Pennell v. City of San Jose, 485 U.S. 1 , 7 (1 988); Hospital Council of Western Pennsylvania v. City of Pittsburgh, 949 F.2d 83, 89 (3d Cir. 1 991 ). ev en when there is a need for some association members to participate in fact discov ery or at trial./1 1 3/ Pharmaceutical Care Management Association v. Rowe, 429 F.3d 294, 31 0-31 1 (1 st Cir. 2005); Retired Chicago Police Association v. City of Chicago, 7 F.3d. 584, 603 (7 th Cir. 1 993); Hospital Council, 949 F.2d at 89.
          8. The application of the third prong in cases with a conflict among an association’s membership resulted in an interesting split in the circuits./1 1 4/ Unless Congress eliminates the third element of the Hunt test by statutorily authorizing suit for damages,/1 1 5/ associational claims for damages run afoul of this third prong because the claims require indiv idualized proof of damage and representativ e standing is therefore inappropriate./1 1 6/ Retired Chicago Police Association, 7 F.3d at 603-07 (surv ey ing circuit split); see also National B. Edmonds, Comment, Associational Standing for Organizations with Internal Conflicts of Interest, 69 U. CHI. L. REV. 351 (2002). 1 1 5. United Food and Commercial Workers v. Brown Group, 51 7 U.S. 544, 554-59 (1 996). 1 1 6. See Warth v. Seldin, 422 U.S. 490, 51 5 (1 97 5); Bano v. Union Carbide Corporation, 361 F.3d 696, 7 1 4 (2d Cir. 2004) (noting that no Supreme Court or circuit court case has approv ed of representational standing in cases seeking monetary relief, Indian organizations lack standing to bring damage claims for Bhopal-related injuries on behalf of members).
      1. An organization that suffers injury in its own right—rather than, or in addition to, an injury to the rights of its members—has indiv idual standing as a group./1 21 / That injury can be one defined by Congress. For ex ample, in Addiction Specialists v. Township of Hampton, 41 1 F.3d 399, 405-07 (3d Cir. 2005), a methadone clinic had standing to pursue American with Disabilities Act and Rehabilitation Act claims for injunctiv e and compensatory relief based on its association with its clients. See also Innovative Health Systems, Incorporated v. City of White Plains, 1 1 7 F.3d 37 , 47 (2d Cir. 1 997 ).
        1. When the group asserts an injury to its own interests, the group has standing qua group, irrespectiv e of any injury to members./1 22/ Thus, a group that suffers or will suffer economic harm,/1 23/ or diminution in membership attributable to unlawful conduct, has an indiv idual injury sufficient to confer standing./1 24/ Representativ e and organizational standing must be distinguished. See Irish Lesbian and Gay Organization v. Giuliani, 1 43 F.3d 639, 649 (2d Cir. 1 998) (group had standing because of economic harm to the organization, but organization did not hav e representativ e standing to seek damages for indiv idual members). 1 23. This economic harm may take the form of ex penditures that would not be required but for the challenged action. See Mid-Hudson Catskill Rural Migrant Ministry, Incorporated v. Fine Host Corporation, 41 8 F.3d 1 68, 1 7 4-7 5 (2d Cir. 2005); Smith v. Pacific Properties and Development Corporation, 358 F.3d 1 097 , 1 1 05-06 (9th Cir. 2004) (rev ersing dismissal of complaint by adv ocacy group for the disabled which alleged that it div erted resources to monitor and publicize alleged discrimination). 1 24. See, e.g., NAACP v. Alabama, 357 U.S. 449, 459-60 (1 958); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 1 23, 1 57 -59 (1 951 ) (Frankfurter, J., Douglas, J., and Burton, J., concurring); M.O.C.H.A. Society v. City of Buffalo, 1 99 F. Supp. 2d 40, 46 (W.D.N.Y . 2002) (finding associational standing based on loss of membership); Wyoming Timber Industry Association v. U.S. Forest Service, 80 F. Supp. 2d 1 245, 1 253 (D. Wy o. 2000) (v alidating organizational standing based on economic harm to a trade association); but see Minnesota Federation of Teachers v. Randall, 891 F.2d 1 354, 1 359 (8th Cir. 1 989) (holding that fear of potential loss of union membership is insufficient to confer organizational standing). So would an organization claiming that an agency v iolated its statutory right to information./1 25/ See Friends of Animals v. Salazar, 626 F.Supp.2d 1 02, 1 1 1 -1 3 (D.D.C. 2009).
          1. Howev er, the facts relating to this harm are subject to discov ery ./1 26/ Membership rolls, for ex ample, may be discov erable depending on whether “good cause” ex ists for a protectiv e order pursuant to Federal Rule of Civ il Procedure 26(c). See generally Courier-Journal v. Marshall, 828 F.2d 361 , 364-67 (6th Cir. 1 987 ) (affirming the district court’s use of discretion in fashioning a protectiv e order that recognizes the associational rights of nonparty members of the Ku Klux Klan). Prior to litigation, prospectiv e organizational plaintiffs should be adv ised to keep careful records of membership loss or div ersion of resources./1 27 / Failure to cite to such record ev idence in the district court waiv es the assertion of organizational standing on appeal. National Alliance for the Mentally Ill v. Board of County Commissioners, 37 6 F.3d 1 21 92, 1 295-96 (2004).
          2. group standing deriv ing from injury to the group’s non-economic 12/31/12 Federal Practice Manual for Legal Aid Attorneys federalpracticemanual.org/book/export/html/3 49/222 prohibit standing based upon a general injury to a group’s ideological interests./1 29/ Thus, group standing deriv ing from injury to the group’s non-economic interests offers only limited possibilities for litigation. See Havens Realty Corporation v. Coleman, 455 U.S. 363, 37 2-80 (1 982) (organization dedicated to open housing has standing to challenge realtytt v. Spear, 520 U.S. 1 54, 1 62 (1 997 ).
          3. In structuring a claim by a group suing qua group, ev ery effort should be made to identify and plead some kind of economic harm or threat to membership flowing from the challenged conduct. Because combining indiv idual group standing with associational group standing increases the likelihood of success in establishing standing, a group asserting injury to its own interests should, whenev er possible, also plead representativ e standing.
    9. Prudential Limitations on Standing
      1. As a matter of judicial self-gov ernance, the Court has also held that prudential considerations counsel against standing ev en in cases in which the Article III case or controv ersy requirement has been satisfied. These considerations are motiv ated by the Court’s reluctance to decide matters of national significance that it regards as being more appropriately resolv ed by other branches of gov ernment and unlikely to protect the interests presented./1 30/ The Court has identified three prudential doctrines: (1 ) the limitation on tax pay er or generalized griev ance standing, discussed abov e, (2) the zone of interests test and (3) limitations on third-party standing.
        1. The Zone-of-Interests Test
          1. 3.1.D.1. The Zone-of-Interests Test Beginning in Association of Data Processing Service Organizations Incorporated v. Camp/1 31 /, the Court has required that plaintiffs establish that their griev ance “must arguably fall within the zone of interests protected or regulated by the statutory prov ision or constitutional guarantee inv oked in the suit.”/1 32/
          2. This prudential limitation on standing is “founded in concern about the proper—and properly limited—role of the courts in a democratic society .”/1 33/ Warth v. Seldin, 422 U.S. 490, 498 (1 97 5).
          3. The limitation may be set aside by Congress./1 34/ Congress must do so ex plicitly , such as through enactment of a citizen-suit prov ision. See, e.g., Bennett, 520 U.S. at 1 64 n.2.
          4. The zone-of-interests test originally arose from an interpretation of the standing prov ision in the Administrativ e Procedure Act./1 35/ Administrativ e Procedure Act, 5 U.S.C. § 7 02.
          5. The Court, howev er, has ex panded it to apply to any prov ision of law./1 36/ Bennett, 520 U.S. at 1 63. See, e.g. Thinket Ink Information Resources, Incorporated v. Sun Microsystems, Incorporated, 368 F.3d 1 053 (9th Cir. 2004) (minority -owned business falls within zone of interests of 42 U.S.C. § 1 981 if it suffers racial discrimination or has an imputed racial identity ).
          6. In Block v. Community Nutrition Institute, the Court suggested a liberal standard for apply ing the zone-of-interests test./1 37 / A plaintiff fails the test when there is ex press legislativ e intent to preclude rev iew./1 38/ Block v. Community Nutrition Institute, 467 U.S. 340 (1 984). 1 38. The Block Court unanimously held that consumers of milk lacked standing to challenge milk marketing orders because there was ev idence of congressional intent to deny consumers a right to obtain judicial rev iew of such orders. Id. at 347 -48.
          7. Subsequently , the Court ex pressly stated that the zone-of-interest test “is not meant to be especially demanding,” precluding standing only when “the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot be assumed that Congress intended to permit the suit.”/1 40/ Clarke v. Security Industry Association, 47 9 U.S. 388, 399-400 (1 987 ).
    10. Third Party Standing
      1. Third-party standing issues arise when a party seeks relief by asserting the rights of third parties not before the court. Generally , parties may seek only to v indicate their own legal rights rather than those of others./1 44/ The Supreme Court recently distinguished third-party standing cases from cases in which an assignee of a legal claim files suit. In such actions, the assignee asserts their own legal rights, not those of another, ev en when the assignee has promised to repay the assignor money recov ered in the litigation. Sprint Communications v. APCC Services, 1 28 S. Ct. 2531 (2008).
        1. The presumption against third-party or jus tertii standing rests on prudential principles rather than an application of Article III limitations on standing./1 45/ See United Food and Commercial Workers Union v. Brown Group, 51 7 U.S. 544, 557 (1 996).
          1. Those prudential limitations, in turn, are grounded upon concerns that third parties may not wish to hav e their rights asserted, that parties are less likely to adv ocate v igorously the rights of others, and that the quality of judicial decision making may suffer when concrete ev idence of harm is not presented by those suffering it./1 46/ See Singleton v. Wulff, 428 U.S. 1 06, 1 1 4-1 5 (1 97 6); Erwin Chemerinsky , Federal Jurisdiction 84-91 (5th ed. 2007 ).
          2. The Supreme Court has generally permitted third-party standing in cases when enforcement of the challenged law or conduct affects third parties indirectly , but has been somewhat less willing to sanction use of third-party standing in other contex ts./1 47 / Kowalski v. Tesmer, 543 U.S. 1 25, 1 29 (2004) (attorney s lack standing to challenge state process for appointing appellate counsel for indigent defendants who plead guilty ).
          3. The Court dev eloped a three-part test, each prong of which must be satisfied in order to bring third-party claims: “[t]he litigant must hav e suffered an ‘injury in fact,’ thus giv ing him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute; the litigant must hav e a close relationship to the third party ; and there must ex ist some hindrance to the third party ’s ability to protect his or her own interests.”/1 48/ Powers v. Ohio, 499 U.S. 400, 41 1 (1 991 ) (citations omitted); see Kowalski, 1 25 S. Ct. at 567 .
          4. As this test has been applied, howev er, the Court has found standing ev en in cases in which the second or third prong has not been clearly established. The first prong of the test has been rigorously enforced. The plaintiff must satisfy traditional constitutional standing requirements; the challenged law or conduct must injure the party in order for that party to assert the rights or interests of third parties. These requirements hav e been found to be satisfied when, for ex ample, the plaintiff challenges laws that cause it economic harm,/1 49/ See Singleton, 428 U.S. at 1 1 9 (doctor suffers loss of Medicaid reimbursement income). or a criminal defendant challenges jury selection procedures./1 50/ See Powers, 499 U.S. at 41 1 (discriminatory use of peremptory challenges harms criminal defendant).
          5. With respect to the second prong, the Supreme Court has not articulated specific standards for the degree of the closeness of the relationship between the plaintiff and the third party whose rights are asserted, or the nature of the relationship which satisfies this criterion. Nonetheless, a number of cases offer significant guidance. In Singleton v. Wulff, a leading case in this area, the Supreme Court held that a phy sician had standing to assert the rights of patients in challenging a state statute limiting Medicaid-cov ered abortions. The Court noted the close relationship between doctor and patient and stated that the relationship was directly implicated by the law challenged. Similarly , the Court permitted an attorney to challenge a statute limiting the ability to recov er attorney fees in black lung benefit cases on the ground that the statute v iolated his client’s due process right to legal representation./1 51 / U.S. Department of Labor v. Triplett, 494 U.S. 7 1 5, 7 20-21 (1 990). In its most recent third-party standing case, the Supreme Court held that criminal defense attorney s did not hav e third-party standing to assert claims of future clients. Kowalski, 543 U.S. at 1 30-31 .
          6. In so doing, the Court observ ed that third-party standing was appropriate in cases in which the limitation or restriction challenged by the plaintiff prev ented the third party from establishing a lawful relationship with the plaintiff./1 52/ Triplett, 494 U.S. at 7 20. This principle might hav e been applied in Kowalski, but was not.
          7. This notion ex plains a number of cases in which the Court held that suppliers of products may challenge restrictions on sales by asserting the rights of customers to obtain the product. In Craig v. Boren, for ex ample, a seller of beer was permitted to challenge on equal protection grounds an Oklahoma law that prohibited sales of 3.2 percent beer to men under 21 , while allowing the sale to women aged 1 8 to 21 ./1 53/ Craig v. Boren, 429 U.S. 1 90 (1 97 6).
          8. While the relationship between a tav ern and customers seems more tenuous than that between a doctor and patient or an attorney and client, the Court justified its holding on the ground that the seller “is entitled to assert those concomitant rights of third parties that would be ‘diluted or adv ersely affected’ should her constitutional challenge fail and the statutes remain in force.”/1 54/ Id. at 1 95. Craig’s sweep is potentially quite broad. The articulated justification for the decision admits of no logical limit, and how the third prong, discussed infra, was satisfied is difficult to see. The Supreme Court observ ed that the law banned the sale, not the consumption, of 3.2 percent beer, but this hardly seems a substantial barrier blocking y oung men from challenging the statute.
          9. Similarly , the Court has permitted booksellers to assert the First Amendment rights of book buy ers/1 55/ and sellers of contraceptiv es to assert the priv acy rights of customers./1 56/ Virginia v. American Booksellers Association, 484 U.S. 383, 392 (1 988). 1 56. Carey v. Population Services International, 431 U.S. 67 8, 682-83 (1 97 7 ); Eisenstadt v. Baird, 405 U.S. 438, 443 (1 97 2); but see Tileston v. Ullman, 31 8 U.S. 44, 45-46 (1 943) (deny ing standing of doctor to challenge laws prohibiting use of contraceptiv es on behalf of patients).
          10. With respect to the third prong of the test, the Supreme Court frequently permits third-party standing when the third party is unlikely to assert its own interests. Most recently , the Court permitted third-party standing in jury selection cases. In Powers v. Ohio, a white criminal defendant appealed his conv iction on the ground that the prosecutor’s use of peremptory challenges v iolated the equal protection rights of prospectiv e African American jurors./1 57 / Powers v. Ohio, 499 U.S. 400 (1 991 ).
          11. The most sensible approach to litigation in the face of uncertainty is to av oid third-party standing problems by joining appropriate additional plaintiffs. Creating a complex and unnecessary obstacle to the assertion of a claim by attempting to hav e one plaintiff assert the rights of others makes no sense. Simply join representativ e indiv iduals whose rights are at issue as named plaintiffs. Third-party standing rules are more clearly dev eloped in the contex t of ov erbreadth claims. The prototy pical ov erbreadth claim arises when regulation of activ ity protected by the First Amendment is challenged on the ground that the regulation sweeps substantial protected as well as unprotected conduct or ex pression within its prohibition. When plaintiff is engaging in ex pression clearly subject to permissible regulation under a properly drawn restraint, the ov erbreadth challenge raises third-party standing issues.
          12. The leading case is Secretary of State of Maryland v. Joseph H. Munson Company/1 7 0/ The Court held that a plaintiff inv oking third-party standing in an ov erbreadth case must establish only that he had suffered injury in fact and that he would adequately frame the issues./1 7 1 / Secretary of State v. Joseph H. Munson Company , 467 U.S. 947 (1 984). Any one who has suffered injury is unlikely to be unable to frame the issues adequately . Thus, the only real requirement is the irreducible minimum requirement of injury in fact.
          13. To demonstrate injury in fact in an ov erbreadth case, the plaintiff must demonstrate “a genuine threat of enforcement” of the statute against his future activ ities./1 7 2/ City of Houston v. Hill, 482 U.S. 451 , 459 (1 987 ) (quoting Steffel v. Thompson, 41 5 U.S. 452, 47 5 (1 97 4)). Thus, in Hill, an indiv idual who had been arrested four times but nev er conv icted under an ordinance prohibiting interference with a police officer had standing to seek to enjoin future enforcement on the ground of ov erbreadth.
          14. Underly ing the special third-party standing rule for ov erbreadth cases is the risk that the absent party whose rights are at issue may refrain from the protected activ ity rather than sue to v indicate First Amendment rights. Should that happen, society loses the v iews of those who are silenced.
    11. CAPACITY
      1. Capacity concerns a party's personal right to come into court,
        1. There is yet another CONSTRAINT to the agency relationship and this is the constraint assocIated with capacity.
        3. AGENCY: http://hennalady.minus.com/mbvUDpNEH8YjWG
        4. CORPORATE GOVERNANCE http://hennalady.minus.com/mrstZiC0I8MBx
        5. CONCEPTS & DEFINITIONS http://hennalady.minus.com/myzSSesJUwWaC
        6. In most states, minors lack the capacity to contract.
        7. Incompetents also lack capacity.
        8. Corporations may lack capacity when not properly registered.
        10. LIABILITY OF PRINCIPAL FOR AGENT'S CONTRACTS: http://www.xmind.net/m/TmTc/
        11. And in some instances the legislature has expressly set forth specific capacity requirements. For example, executors and administrators generally have the capacity to act on behalf of an estate.
        12. SEE MY NOTES ON TRUSTS https://docs.google.com/file/d/0B6B82KE0kaD6THlHTlJBai1PQTg/edit
      2. --->
        3. PERSONAL
        4. PROPRIETOR
        5. PARTNERSHIP
        6. CONSUMER
        7. CORPORATION
    12. "Standing is not to be confused with capacity.
      1. The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a ‘justiciable interest’ in its outcome, whereas the issue of capacity ‘is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate.’ 6A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, AND MARY KAY KANE, WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1559, at 441 (2d ed. 1990).
    13. STANDING
      1. while standing concerns the question of whether a party has an enforceable right or interest."
        1. “A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or a representative capacity, some real interest in the subject matter of an action.” Wells Fargo Bank, v. Byrd, 178 Ohio App.3d 285,2008-Ohio-4603,897 N.E.2d
        3. A second constraint involves what in a legal setting is generally referred to as "standing". “Under federal law, standing is also an aspect of the Article III limitation of the judicial power to ‘cases’ and ‘controversies.’ Sierra Club v. Morton, 405 U.S. 727, 731, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972).
        4. To comport with Article III, a federal court may hear a case only when the litigant has been threatened with or has sustained an injury. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471-74, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). States have their own standing requirements as to litigants and litigation. These DIFFER from state to state.
        5. “A plaintiff must allege personal injury” – Allen v. Wright, 468 US 737,751; U.S. Supreme Court
        6. “Standing is a necessary component of subject matter jurisdiction.” Rames v. Byrd, 521 US 811
        7. “Standing is perhaps the most important of [the jurisdictional] doctrines… Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation…” NOW, Inc. v. Scheidler, 510 US 249.
        8. “The requirement of standing has a core component derived directly from the Constitution. A plaintiff must allege personal injury (the violation of a legal right) fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984).
        9. “Without standing there is no actual or justiciable controversy, and courts will not entertain such cases.” Clifford S. v. Superior Court, 45 Cal. Rptr. 2D 333, 335
        10. “If a party is found to lack standing the court is without subject matter jurisdiction to determine the cause… A court lacks discretion to consider the merits of a case over which it is without jurisdiction.” Miss. So. …Pardons & Paroles, 896 A.2nd 809,812 (Conn. 2006)
  2. ?
    1. Now WRAP your MIND around THAT...
      1. CREATED 03.26.2013 by Lisa Stinocher O'Hanlon using XMind Software
        1. For More of my Maps: https://www.xmind.net/share/hennalady/
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