So Kansasgirl might think about black pumps over breakfast. Not me.

As per the (half-hearted) request of one Kansasgirl, I have decided to explain a recent revelation I had concerning standing requirements and the nature of our adversarial legal system.

For a long time, I’ve had a nagging feeling about the nature of parts of our legal system. Usually, when I get these nagging feelings, they are some indication that there is some logical inconsistency in the principles underlying the administration of justice in America or some fundamental disagreement between my moral intuitions and the moral intuitions of a large number of other people.

Well, my Environmental Law class has been discussing standing requirements as part of our ongoing discussion of citizen-suits to enforce environmental laws. When asked about the purposes of standing requirements, I answered that the purpose of the requirements was largely one of efficiency. Courts refuse to give advisory opinions about matters because if they did give those opinions, they would have far too much work for them to get through in a given year, and unless we created a much larger legal system with more judges and lawyers, we would quickly create a large backlog of cases (even more so than now).

The professor disagreed and suggested that efficiency concerns were merely a happy by-product of the real reason for standing requirements, which was that it was necessary to ensure that the adversarial nature of our legal system remained intact. He (through another student) contended that if parties have some actual stake in the matter under discussion in a case, that they will make the best possible arguments for their sides.

This is undoubtedly a true statement of why having parties in interest be parties to the case is a good thing for the administration of justice. However, there is one small snag in this analysis that I feel brings the whole thing crashing to its metaphorical knees.

Over breakfast on Wednesday, I suddenly figured out what I’d been missing that gave me the nagging uncertainty about standing requirements. This then was the content of my Wednesday morning revelation, while I ate my banana and sipped some Raspberry tea: In American justice, the parties in interest are rarely the parties who come up with and make the arguments. In virtually every single case (with only a tiny number of exceptions) lawyers do all of that. Lawyers are not interested parties in the litigation. Our only legal interest in the matters over which we are paid to argue is our payment. We suffer no specific injuries (that would give us – the attorneys) standing in any case we argue before the court.

So why then is standing required for the adversarial process? Is it so hard to imagine a scenario like the following?

Suppose we do away with standing requirements entirely, and allow for advisory opinions. What prevents parties from simply presenting a question to the court and having the court appoint two attorneys to take opposite positions on the issue and make the best arguments that they can? The parties making the arguments (the lawyers) have exactly the same incentives to come up with the best possible arguments as they did in the system of justice where standing requirements were placed on the parties for whom the attorneys argued.

Aside from issues of efficiency and backlog, what reason do we have to support standing requirements? Perhaps I’m missing something, but I can’t think of any off of the top of my head.