William & Mary Bill of Rights Journal


When can a litigant assert someone else’s rights in federal court? The courts currently purport to adhere to a “prudential” justiciability rule barring such “thirdparty standing.” But the Supreme Court has devised exceptions—jus tertii standing and First Amendment overbreadth—under which courts can ignore that rule. The Court has never explained the source of that remarkable judicial power to choose what rights litigants can assert. The doctrine of third-party standing is, in short, an undertheorized muddle. Thankfully, the Court suggested in its 2014 decision in Lexmark International, Inc. v. Static Control Components, Inc., that it might soon try to bring order to its third-party standing jurisprudence.

Drawing on Lexmark, this Article offers a fresh and timely account of thirdparty standing doctrine. It argues that the rule barring assertion of third-party rights has nothing to do with prudence and justiciability. Rather, it is best understood as going to the merits of the parties’ dispute, in that it concerns the substantive issue of whether a litigant can establish the grounds of a claim or defense. As a merits doctrine, the rule barring assertion of third-party rights appropriately requires courts to defer to limits placed on substantive rights by the lawmakers who created them. That conclusion raises serious questions concerning the viability of the jus tertii standing and overbreadth exceptions. This Article argues that jus tertii standing doctrine can survive, but only if cabined to situations in which recognition of an implied right belonging to the litigant is necessary to effectuate the design of the lawmakers who created the asserted third-party right. The overbreadth doctrine, however, has no place in a world in which courts must defer to lawmakers concerning the scope of substantive rights. But the long-dormant doctrine of jus tertii inseverability, which is grounded in lawmakers’ intentions, could fill some of the void left by the overbreadth doctrine’s demise.