Standing on Thin Ice: Standing Rules and Public Interest Litigation in Ireland and the United States

• Author: Cian Henry
• Position: Senior Sophister LLB (Bus) candidate and Scholar, Trinity College Dublin
• Pages: 315-348

© 2018 Cian Henry and Dublin University Law Society

STANDING ON THIN ICE: STANDING RULES AND

PUBLIC INTEREST LITIGATION IN IRELAND AND

THE UNITED STATES

CIAN HENRY

Introduction

Public interest litigation (PIL) is the use of litigation by individuals and

organisations to enforce collective rights or to influence social

change.

1

Although PIL may encompass several types of litigation, the

exclusive focus of this article is constitutional litigation. Unlike ordinary

litigation, which seeks to enforce the private rights of individuals, it aims

to promote and vindicate the public interest in ensuring that violations of

the constitutional rights of large numbers of people are not left ignored

and without redress.

2

Due to this ‘macro’ function, PIL tends to challenge

the content or operation of public policy,

3

with the core contention of

litigants being that the political system has breached, or failed to enforce,

their constitutional rights.

4

Public interest litigants pursue this goal of advancing social reform

through various forms of litigation. Two common species of PIL claim

receive special attention in this article: first, ‘concerned citizen suits’,

where one individual sues to enforce an undifferentiated public interest;

second, ‘NGO suits’, where an organisation attempts to enforce the general

interests of a class of people.

The principal concern of this paper is the application of standing

rules to this model of litigation. Standing rules are procedural measures

designed, often judicially, to limit access to courts based on the personal

interest of a litigant in a disputed matter. PIL can struggle to be

 Senior Sophister LLB (Bus) candidate and Scholar, Trinity College Dublin. The author is

indebted to Dr Oran Doyle for his invaluable guidance throughout the writing process, and

to Prof Gerry Whyte and Alan Eustace for their incisive comments on an earlier draft of this

article.

1

Jeremy Cooper, ‘Public Interest Law Revisited’ (1999) 25 Commonwealth Law Bulletin 135.

2

People’s Union for Democratic Rights and Others [1982] AIR SC 1473 1476 (Bhagwati J).

3

Abram Chayes, ‘The Role of the Judge in Public Law Litigation’ (1976) 89 Harvard LR 1281,

1302.

4

Gerry Whyte, Social Inclusion and the Legal System (2nd edn, IPA 2015) 433.

316 Trinity College Law Review [Vol 21]

accommodated within these rules because, in simple terms, public interest

litigants often cannot demonstrate the required personal stake. From the

outset, these litigants do not claim a private, personalised injury, but

instead express a grievance, often quite generalised, regarding a public

policy;

5

indeed, this harm may well be systemic, collective, and

probabilistic in nature.

6

Consequently, the party structure in PIL is not

rigidly bilateral, but ‘sprawling and amorphous’.

7

Moreover, the factual

inquiry necessary is at least partly ‘predictive and legislative’, rather than

solely ‘historical and adjudicative’; thus, the adjudication extends beyond

the immediate parties somewhat, frequently involving absentees.

8

As will be seen, such claims are structurally excluded by

conventional rules of standing, which define the necessary personal stake

more narrowly than this. In particular, a litigant is generally required to

complain of a discrete and personalised injury,

9

which creates a concrete,

bipolar, and contained dispute with the sued party.

10

The standing rules

applied in Ireland and the United States will be examined in more detail in

Sections II and III.

In Section I, this paper analyses the debate on PIL, examining five

common objections to PIL, which in turn inform restrictive standing rules.

These objections, it is argued, find their roots in the tradition of the

common law. This tradition views the judicial power as limited to the

resolution of concrete legal disputes, believing that rights need only be

enforced incidental to the determination of these disputes. This limited

view of the judicial power is to some degree in tension with the practice

of PIL, which, in its efforts to engineer social change, sees constitutional

rights as inherently valuable matters, and the presence or absence of a

concrete, factual dispute as ultimately arbitrary. Thus, it is argued that the

conflict between the practice of PIL and the standing rules which constrain

it may be re-characterised as a deeper clash between the legal traditions of

the constitution and common law respectively.

In Parts II and III, the paper examines the standing rules enforced by

Irish and US courts, which are mapped onto the framework derived from

5

Chayes (n 3) 1302.

6

Daniel J Meltzer, ‘Deterring Constitutional Violations by Law Enforcement Officials:

Plaintiffs and Defendants as Private Attorneys General’ (1988) 88 Colum LR 247, 304.

7

Chayes (n 3) 1284.

8

Chayes (n 3) 1297.

9

Jerry Mashaw and David Harfst, ‘Regulation and Legal Culture: The Case of Motor Vehicle

Safety’ (1986) 4 Yale J on Reg 257, 272-273.

10

Cass R Sunstein, ‘Standing and the Privatization of Public Law’ (1988) 88 Colum LR 1432,

1436.

317 Standing on Thin Ice [Vol 21]

Part I. It is found that Irish courts apply conventional standing rules,

alongside two limited exceptions. First, they make allowance for

concerned citizen suits where the matter is one of great political and

constitutional importance; second, they permit NGO standing where

affected persons are unable to adequately assert their rights. In Part III, it

is concluded that US courts apply standing rules with significantly more

rigidity, enforcing strict requirements of injury and causation, without

concession to either of the above exceptions. Finally, in Part IV, the impact

of these standing regimes on PIL is normatively assessed. It is concluded

that the US approach, a blanket application of common law standing rules,

excludes many applicants from constitutional protection which they are

owed, with the courts thus failing to fulfil their constitutional obligations.

Meanwhile, Irish exceptions to standing rules rooted in constitutional law

are criticised as unprincipled, as they fail to recognise the distinct

character of PIL, the legitimacy of which derives from the duty of the court

to ensure a functioning constitutional order which includes all citizens. It

is thus recommended that courts develop distinct, independent standing

rules to govern PIL.

I. Theoretical Foundations of Constitutional Standing

Rules

Originating in the tradition of the common law, many conventional

conceptions of the judicial power suppose that the function of courts is

‘dispute resolution’. This common law model, developed through the

experience of private law adjudication, limits courts to the provision of

discrete remedies for concrete injuries to identifiable individuals.

11

In its

eyes, no judicially cognisable controversy may exist without a discrete,

individualised, and often ex post injury to ground it; this being the kind of

injury traditionally cognisable in private law.

12

Furthermore, the common

law view demands that cases adopt a concrete, bipolar structure, in the

style of a typical private law relationship.

13

The model treats the

materialisation and litigation of disputes of this form as an ‘indicator’, to

which the development of the law is strictly tied.

In this way, it will be seen that these common law understandings

are a common thread throughout criticism of PIL. Through the application

of restrictive standing rules, these common law understandings have

11

Meltzer (n 6) 304.

12

Mashaw and Harfst (n 9) 272-273.

13

Sunstein (n 10) 1436.