The Private Rights of Public Governments

Authors

Seth Davis, University of California, Berkeley School of Law

Abstract

This Essay charts the analytical and doctrinal confusion arising from the category of “proprietary” interests in state standing law. This category might be taken literally to include only the ownership of property and interests that stem from it. It might refer to interests that are analogous to those that a private corporation might litigate, or instead to any type of financial injury a state might suffer. Other possibilities would limit “proprietary” interests to those interests recognized under the common law, or only those interests recognized under private law. Perhaps the most that can be said is that “proprietary” interests should be understood to refer to any interests that are analogous to those of private parties. In addition to this definitional puzzle, there is confusion among courts about how to treat “proprietary” interests in the standing analysis. In many recent cases, states have tried to clear the standing hurdle by combining “proprietary” interests with “sovereign” and “quasi-sovereign” interests. In some cases, moreover, states have argued that they are due “special solicitude” under Massachusetts v. EPA even when they sue to vindicate a proprietary interest.

Together, these analytical and doctrinal questions make up a complex puzzle involving Article III, separation of powers, federalism, and the enforcement of rights. But this puzzle need not and should not be solved in every case.

To bring greater analytical clarity, this Essay proposes a sequence of decisionmaking in state standing cases. Its thesis is that the starting point of analysis of state standing in any particular case should be whether the state has standing under the typical Article III and prudential rules. If a state would have standing under the typical rules applicable to private parties, then the only question is whether there is some reason to show special disfavor to the state. Courts should address questions about special solicitude only in those cases where a state would lack standing under the rules applicable to private parties. This standing analysis should look to the merits of the dispute and the relief the state seeks, and ask whether the state is seeking to enforce its own rights or the rights of a third party and whether the rights it is seeking to enforce are private rights or public rights.

The Essay proceeds in three Parts. Part I parses the interests of states under the modern doctrine. Part II explores the puzzle that these doctrinal distinctions create. Part III lays out an order of battle to help clarify the grounds of debate about state standing in any particular case, and considers the costs and benefits of this order of decisionmaking.

Recommended Citation

Seth Davis, The Private Rights of Public Governments, 94 Notre Dame L. Rev. 2091 (2019).
Available at: https://scholarship.law.nd.edu/ndlr/vol94/iss5/9