Standing for the Public: A Lost History

This Article recaptures a now-anachronistic approach to standing law that the Supreme Court followed in the middle decades of the 20th Century and explains how and when it died. It then speculates about why the federal courts retreated from the doctrine when they did.

The now-anachronistic view of the permissible scope of standing, which is called here “standing for the public,” permitted Congress to authorize parties who had no cognizable legal rights to challenge government action, in order to, as the Supreme Court itself said “represent the public” and bring the government’s legal errors before the courts. Ironically, the federal courts retreated from this approach to standing law in the 1960s and 1970s, the very period that is best known for its doctrinal innovations that liberalized standing law. The Article tells the (complicated) tale of how the courts erased the standing for the public principle from the case law, places those actions action in context by looking at contemporaneous developments in the legal profession and Congress, and speculates about why this approach to standing law died when it did.

Return on Political Investment: The Puzzle of Ex Ante Investment in Articles 3 and 4 of the U.C.C.

When, why, and how does a firm decide to invest its resources in political capital? What factors inform the firm’s decision to lobby political bodies? How important is the resulting durability of law in making this calculus? Although these questions have been largely unanswered in the legal literature, they are fundamental to a complete understanding of public choice theory. Using Articles 3 and 4 of the Uniform Commercial Code as a framework for examining these questions, this Note identifies four threshold inquiries each firm must answer before engaging in political investment. It then develops those factors that a firm may consider in estimating its return on political investment (ROPI). A puzzle emerges, however, when one considers the default nature of the U.C.C. Economic theory and the right to contract suggest that the ex post distribution of such terms will achieve general equilibrium regardless of their ex ante value. Without ex post legal durability in the form of mandatory rules, it is difficult to imagine just how commercial banks are capable of harnessing long-term permanent returns from their political investment in the U.C.C. While the current legal literature simply assumes that banking interests can harness a non-negative return on political investment, this Note relies upon behavioral economics and the notion of bounded rationality to conclude that private banking interests are likely to capture a positive ROPI, even where default rules with seemingly little durability govern their contracts. In arriving at this conclusion, it first identifies the political investment threshold inquiries a firm must answer prior to contributing capital to a political investment, as well as the substantive returns that firms are likely to realize as a result.

The Right to Judicial Review

Judicial review is typically justified on consequentalist grounds, namely that it is conducive to the efficacious protection of rights. This paper disputes this popular explanation for judicial review and argues that judicial review is based on a “right to voice a grievance” or a “right to a hearing” – a right designed to provide an opportunity for the victim of infringement to challenge it. The state must justify, and in appropriate cases, reconsider, any infringement in light of the particular claims and circumstances of the victims of the infringement. This right-based justification implies that judicial review is justified even if it is found that it is ultimately detrimental to the efficacious protection of rights. Last, it is argued that the right to a hearing is a participatory right and consequently that judicial review does not conflict with the right to equal democratic participation.