Against Associational Standing
Associational standing is a widely used doctrine that has never been subject to serious academic scrutiny. It allows an organization that has not suffered any injury in fact to sue in its own name to assert its members’ causes of action. Though the doctrine is often associated with public interest groups, major corporations have usurped it to be able to sue, through trade groups or entities created solely to pursue a particular lawsuit, without becoming party litigants to the case.
The Supreme Court first recognized associational standing as an offshoot of third-party standing to allow an organization that had suffered institutional harm to assert its members’ rights concerning their relationship with the organization itself. The Court has since extended associational standing to allow an uninjured group to pursue any of its members’ claims relating to the group’s purpose, including claims completely unconnected to their membership in the group. The Court has likewise allowed associational standing to be invoked by both zero-member groups and compulsory groups whose members are not free to quit.
This anomalous exception to Article III’s injury-in-fact requirement stands in tension with the fabric of U.S. law in ways that have been generally overlooked. Statutes, procedural rules, and most judge-created requirements were not crafted with associational standing in mind, repeatedly creating unnecessary quandaries throughout the litigation process. Associational standing allows plaintiff groups to circumvent Federal Rule of Civil Procedure 23 by enabling them to effectively craft their own classes without judicial approval or satisfying the Rule’s requirements. The doctrine also violates Rule 17(a)’s real-party-in-interest requirement, triggers disputes over potential asymmetric claim preclusion, and offers a backdoor method for courts to inappropriately issue nationwide defendant-oriented injunctions. Moreover, it undermines public policy goals by impacting how statutes such as the Equal Access to Justice Act apply to a rightsholder’s claims, and violates traditional equitable principles. While courts may adopt ad hoc solutions to address each of these difficulties individually, such patches underscore the poor fit between associational standing and the structure of litigation in the United States.
This Article calls for the abandonment, or at least serious modification, of associational standing. Even without associational standing, groups may still sue to enforce their own rights. And they could continue to help vindicate their members’ rights by providing legal representation for member plaintiffs in individual or class action suits (filed anonymously, if necessary), covering members’ litigation costs, and providing expert witnesses and other guidance. In short, associational standing is a largely unnecessary deviation from both Article III’s injury-in-fact requirement and the fundamental principles underlying our justice system. Eliminating associational standing would not limit public law and other important collective litigation, but rather ensure that such cases proceed through the proper channels (i.e., Rule 23) while preventing a range of unnecessary procedural, preclusive, remedial, and other complications.