As summer approached, Steve Lubet generously posted about the publication of our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press), long in the making. We are grateful for the opportunity now to present a series of guest posts with some reflections based on Lakefront. Last month, the Volokh Conspiracy hosted us for a five-part series focused on the public trust doctrine (the posts are collected here). In the five posts in this series (three this week and two next), we will examine standing to enforce public rights.
1. Introduction—Article III and Common-Law Standing
Standing is nearly always discussed in terms of the Supreme Court’s doctrine governing who may sue in federal court consistently with Article III of the Constitution. This is unfortunate. A wider array of standing rules comes into the picture when one considers common-law doctrines governing who may sue to enforce public rights.
This makes Lakefront—which unpacks a century and a half of controversies over public rights along the Chicago lakefront—an especially useful vehicle for considering standing. We will see that many of these controversies reveal judicial conceptions about standing very different from the Supreme Court’s Article III doctrine.
The boilerplate version of the Article III doctrine goes like this: The Constitution gives federal courts power to adjudicate only “Cases” and “Controversies.” A dispute is of this nature only where a plaintiff has standing—that is, only where the plaintiff can allege (1) injury in fact that is (2) fairly traceable to the defendant’s allegedly unlawful conduct and (3) likely to be redressed by the requested relief. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006). Injury in fact, the most critical requirement, has been further spelled out to mean an invasion of a legally protected interest that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338–39 (2016) (internal quotation marks omitted).
The roots of the Court’s three-part test are unclear. The most plausible account is that it is based on a generalization about the requirements of private law. The common law of torts requires that the plaintiff establish “injury” “caused” by the defendant’s breach of a legal duty. And if equitable relief is sought, it must provide effective redress for the alleged injury; in other words, it cannot be a futile exercise.
Given that standing in federal court is an issue primarily when persons sue to vindicate some public right, such as environmental protection, it is not clear why Article III standing should be limited to those who satisfy requirements derived from private law. But this is what the Court has held. The doctrine has a certain family resemblance to the Court’s understanding that federal adjudication of private rights of contract and tort must be by Article III courts, whereas “public rights” (to forgo here their definition) can be heard by non-Article III courts, including administrative agencies. See, e.g., Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365, 1372–73 (2018) (discussing cases such as Stern v. Marshall, 564 U.S. 462 (2011)).
Let us leave aside (for now) Article III and any exclusive focus on federal courts: Lakefront reveals a variety of common-law standing rules that have been employed to determine who may sue to enforce public rights. In our series of five posts, we will compare and contrast these rules, making some suggestions about their relative merits and demerits.
2. Standing vs. Whether a Plaintiff Has a Cause of Action
Before proceeding, we must note that, in the preceding paragraph, we have defined our term, nearly enough at any rate: By “standing,” we mean the ability to assert, as a plaintiff, an alleged violation of a restriction that the law imposes on someone else (the defendant). We appreciate that whether a plaintiff has “standing” and whether the plaintiff has a cause of action can seem the same thing in some contexts.
In our own series of posts, for example, we will consider the public dedication doctrine (discussed below in this first post and at length in the forthcoming fourth post). In its traditional form, the doctrine’s enforcement has been limited to the government, to a dedicator with a continuing interest, or (for the important point) to an abutting property owner. In this context, no one doubts that the law imposes a restriction on future use, but not everyone can sue to enjoin deviations from this public dedication. We are confident that such a limitation on who may act as a plaintiff can, for purposes of a useful discussion, be fairly characterized as one of standing.
3. A Primer on Standing in the Context of the Public Trust Doctrine and the Public Dedication Doctrine
So let’s get on with the discussion of the merits and demerits of the different rules of standing—the promised comparison and contrast.
Much of Lakefront is concerned with the origins and fate of the public trust doctrine. As applied by the Supreme Court in a landmark 1892 decision involving the Chicago lakefront, the doctrine says that certain resources—paradigmatically, navigable waterways—must remain freely accessible to the general public. Private exclusion rights in such resources, at least if not designed to enhance public access, are prohibited. More recent decisions have expanded the scope of the doctrine to include a broader but indeterminate set of resources, including (perhaps) public parks.
Over time, courts have invoked three different rules for determining who has standing to enforce this public trust.
At first, it was apparently assumed that judicial enforcement was limited to what we can call the parens patriae model. This limits legal standing to vindicate rights of the general public to a principal legal officer of the state—typically, the state attorney general. This limitation is logical: if the right is one held in common by all the people of the state, such as a common right of access to the resources protected by the public trust, a public official accountable to all the people of the state is, in theory, the logical one to file suit, as we see in other contexts, such as the criminal law. (Our second post will focus on parens patriae standing.)
Later, the Illinois Supreme Court expanded standing under the public trust doctrine, going beyond the principal legal officer of the state to include individuals who could show that they have suffered “special injury” by reasons of violation of the public trust. Special injury means some harm that is qualitatively different from the harm suffered by members of the public in general. This doctrine was based on an analogy to public nuisance law, which typically allows either legal officials or those who have suffered special injury to sue to redress the harm caused by a public nuisance.
Most recently, the Illinois Supreme Court has held that any Illinois taxpayer can sue to vindicate a violation of the public trust. This is the broadest standing rule that we have encountered. It effectively allows any NGO that includes one or more Illinois residents paying any kind of state tax (including sales tax) to sue to block projects alleged to violate the public trust. It is nearly equivalent to universal standing. (Our third post will focus on these later two rules: special-injury and taxpayer standing.)
Besides the public trust, Lakefront also considers a different public rights doctrine—public dedication. This similar-sounding but quite different doctrine traditionally allows owners of land directly abutting some area that is dedicated to a public use—such as a park or a street or a town square—to sue in equity to enforce the dedication. The public dedication doctrine was used to great effect by owners of property on Michigan Avenue in Chicago, such as Montgomery Ward, to block projects inconsistent with notations appearing on maps that the land to the east, adjoining Lake Michigan (and known since ca. 1900 as Grant Park), would remain forever “vacant of buildings.”
To emphasize the point relevant here: Public dedication adopts a rather unusual rule that allows a limited class of private-rights holders to sue to enforce public rights, on the ground that these individuals are disproportionately affected by the rights violation. (Our fourth post will focus on standing with respect to public dedication.)
As we shall see throughout the subsequent posts, Lakefront allows us to make some rough generalizations about the pros and cons of these different doctrines governing who has standing to enforce public rights. Article III standing makes an appearance near the end of the story, in the form of one of the last opinions by Amy Coney Barrett while a judge on the Seventh Circuit. So when we get to fifth and final post, we can add Article III standing doctrine to the mix of comparative evaluation.
We hope that you will join us on this brief excursion and that, like us, you will find the rich history of the Chicago lakefront to be highly instructive about the law of standing to enforce public rights.
Posted by Joseph D. Kearney and Thomas W. Merrill
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