Caleb Nelson

A Re-Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America

UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, 1998 to present: Emerson G. Spies Distinguished Professor of Law, 2008 to present Professor of Law, 2003 to 2008; Associate Professor of Law, 1998 to 2003 Research chairs held: Elizabeth D. and Richard A. Merrill Professor, 2013 to present Class of 1966 Research Professor, 2009 to 2012 Albert Clark Tate, Jr., Research Professor, 2004 to 2007 All-University Teaching Award, 2008 McFarland Award, 2006 (awarded every two years to a member of Virginia’s junior faculty for excellence in scholarship) Paul M. Bator Award, Federalist Society, 2006 Visiting Professor, Harvard Law School, Fall 2006 Winner of the Scholarly Papers Competition, Association of American Law Schools, 2000 Courses taught: Civil Procedure, Federal Courts, Legislation, Constitutional Law

Does History Defeat Standing Doctrine

Although the modern Supreme Court claims historical support for refusing to let private parties who have suffered no concrete private injury ask federal courts to redress harms to the public at large, academic critics have insisted that the law of standing is a twentieth-century invention of federal judges. In earlier eras, the critics argue, the recognized forms of action might have required plaintiffs to have particular injuries in order to make out specific claims, but there was no generalized standing law, and certainly no constitutional requirement of individualized injury for people challenging governmental action. This article disagrees. In the nineteenth century, courts enforced an active law of standing (although not so called) that cut across various causes of action, and that reflected the distinction between public and private rights. Courts regularly designated some areas of litigation as being under public control and others as being under private control. What is more, and contrary to the standing critics, the Supreme Court often did discuss these issues in constitutional terms, particularly in actions against federal and state governmental officials. We do not claim that history compels acceptance of the modern Supreme Courts vision of standing, or that the constitutional nature of standing doctrine was crystal clear from the moment of the founding on. The subsistence of qui tam actions alone might be enough to refute any such suggestion. We do, however, argue that history does not defeat standing doctrine; the notion of standing is not an innovation, and its constitutionalization does not contradict a settled historical consensus about the Constitutions meaning.