Joinder, Not Jurisdiction: Toward a New Theory of Standing

Authors

Adam N. Steinman, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

9-2025

Journal Title

Wake Forest Law Review

ISSN

0043-003X

Abstract

This Article builds on an important development in the Supreme Court’s standing jurisprudence to propose a novel theory that would allow more meaningful access to federal courts while vindicating legitimate separation-of-powers concerns. In its recent decision in TransUnion LLC v. Ramirez, the Supreme Court endorsed a theory of standing based on Article II, writing that litigation between private parties—even when explicitly authorized by Congress—can run afoul of the executive branch’s interest in “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.” This Article II move has been justifiably criticized. But it is more plausible than the prevailing notion that a plaintiff invoking a statutorily authorized cause of action against another private party fails to present even a “case or controversy” under Article III if that plaintiff has not suffered some additional “injury in fact.” A proper understanding of this Article II executive-branch interest can yield a more sensible approach to standing than the current Article III framework. When a lawsuit between private parties runs afoul of the Court’s injury-in-fact requirement, the remedy should not be to dismiss the case for lack of jurisdiction, but rather to allow an opportunity for the executive branch to participate in the litigation. The opportunity for executive-branch involvement was an important feature of pre-TransUnion decisions on standing in litigation between private parties. And this Article shows how the Federal Rules of Civil Procedure—particularly Rule 19’s provisions on required joinder—empower private defendants to prompt that involvement by the executive branch in cases where the plaintiff lacks the concrete injury that is currently viewed as a requirement of Article III. This approach preserves the potential interests of the executive branch, but it also maintains both Congress’s authority to enact private-enforcement mechanisms and the federal judiciary’s core function of interpreting and applying federal law. Standing doctrine would be more coherent from a federalism standpoint as well, correcting some perverse implications with respect to state law and state institutions.

First Page

743

Last Page

792

Num Pages

50

Volume Number

60

Issue Number

3

Publisher

Wake Forest Law Review Association

Recommended Citation

Adam N. Steinman, Joinder, Not Jurisdiction: Toward a New Theory of Standing, 60 Wake Forest L. Rev. 743 (2025).
Available at: https://scholarship.law.tamu.edu/facscholar/2289

File Type

PDF