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Douglas L. Parker, Standing to Litigate Abstract Social
Interests in the United States and Italy: Reexamining
Injury in Fact, 33 Colum. J. Transnat'l L. 259
(1995)
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Articles
Standing to Litigate "Abstract Social

Interests" in the United States and Italy:
Reexamining "Injury in Fact"
DOUGLAS L. PARKER"
An American lawyer seeking to compare the Italian and

United States legal systems quickly finds that the two sys-
tems differ in many ways, and that they are the products of
very different historical and theoretical backgrounds.
Despite these differences, however, the Italian and United
States systems have to address many of the same basic
practicalquestions that arise in any legal system. This
articlefocuses on one of those questions; namely, how to
determine who can sue and seek a judicial remedy for
allegedly illegal action. The author concludes that the
Italian experience suggests a new way of looking at this
issue in the United States.
* Professor of Law and Director of the Institute for Public Representation, George-
town University Law Center. This article grew out of my experience as director of a public
interest law firm and clinical program at Georgetown, where questions of standing have
frequently arisen in the course of our cases and projects, and my experience while on
sabbatical during the spring semester 1990, when I studied the Italian legal system at the
Universities of Bologna and Florence. While in Italy, I was a guest of Professor Federico
Carpi and the Istituto di Applicazione Forense at the University of Bologna, a program de-
signed to prepare recent law graduates to enter careers as attorneys and judges. My research
in Italy was supported in part by a grant from the Centro Nazionale per le Ricerche. I owe
special thanks to my research assistants, Enzo De Laurentiis and Denise Manning-Cabrol.
COLUMBIA JOURNAL OF TRANSNATIONAL LAW [33:259
I. OVERVIEW AND INTODUCTION ................... 261

II. AN OVERVIEW OF THE LAW OF STANDING IN THE UNITED
STATES .................................... 264
A. The Common Law of Standing in the Federal
Courts ................................ 265
B. Standing and the Congress .................. 267
Ill. THE ITALIAN PARALLEL ......................... 272
A. The Italian Doctrine Relating to "Standing"....... 272
B. Standing Doctrine as Applied in the Italian Courts . 280
C. Italian Legislation Relating to Standing .......... 282
1. The 1967 Building Construction Law ........ 283
2. The 1970 Workers' Law ................. 284
3. The Italian Red Cross .................. 287
4. The 1986 Environmental Law ............. 288
5. Proposed New Legislation ............... 295
a. The "disegno Spadolini"............. 295
b. The Sexual Violence Statute .......... 297
IV. IMPLICATIONS OF THE ITALIAN EXPERIENCE .......... 298
A. The Goals of the StandingRequirement: Separa-
tion of Powers........................... 299
B. Other Goals of Standing: Ensuring Concreteness.. 310
V. CONCLUSION ................................ 316
19951 STANDING TO LITIGATE IN THE U.S. AND ITALY
I. OVERVIEW AND INTRODUCTION
In American federal courts, the law of standing continues to be

a source of practical and doctrinal frustration. Litigants find courts
applying the rules of standing to avoid reaching the merits of concrete
controversies' and to limit the scope of relief ordered,2 and legal
scholars find the courts' decisions at best amorphous,3 and at worst
intellectually dishonest.4 Many of the problems and frustrations with
the law of standing have arisen in connection with efforts of groups
and individuals to use federal courts to effect social change and to
present issues not traditionally considered to be suitable for judicial
resolution.5 Federal courts have wrestled with the concept of standing
in cases involving a range of social issues that have become increas-
ingly important in recent years: the protection of the environment,6
civil liberties,7 and consumers,8 and the elimination of discrimination
against minorities. 9
The problems of pollution control, urban planning, consumer and
worker protection, and control of arbitrary government action are of
course not limited to the United States. In Italy, for example, the
1. E.g., Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990); Lujan v. Defenders of
Wildlife, 112 S.Ct. 2130 (1992) [hereinafter Lujan].
2. E.g., City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Linda R.S. v. Richard D.,
410 U.S. 614 (1973).
3. Professor Paul Freund described the concept of standing as "among the most
amorphous in the entire domain of public law." Hearings on S.2097 Before the Subcomm.
on ConstitutionalRights of the Comm. on the Judiciary,89th Cong., 2d Sess. 498 (1966).
4. "Although it is probably impossible to document, I suspect that most academics and
practicing lawyers at least share the suspicion that standing law is nothing more than a
manipulation by the Court to decide cases while not appearing to decide their merits."
Steven L. Winter, The Metaphor ofStanding and the Problemof Self-Governance,40 STAN.
L. REV. 1371, 1373 n.14 (1988).
5. For a widely cited account of this change in the role of the federal courts, see
Chayes, The Role of the Judge in PublicLaw Litigation, 89 HARV. L. REv. 1281 (1976).
6. E.g., Sierra Club v. Morton, 405 U.S. 727 (1972); United States v. Students
Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973); Lujan v. Nat'l Wildlife
Federation, supra note 1; Lujan v. Defenders of Wildlife; supra note 1.
7. E.g., Valley Forge Christian College v. Americans United for Separation of Church
and State, 454 U.S. 464 (1982); Fulani v. Brady, 935 F.2d 1324 (D.C. Cir. 1991).
8. E.g., Competitive Enter. Inst., Inc. v. Nat'l Highway Traffic Safety Admin., 901
F.2d 107 (D.C. Cir. 1990); American Legal Found. v. Federal Communications Comm'n. 808
F.2d 84 (D.C. Cir. 1987); Animal League Defense Fund v. Quigg, 932 F.2d 920 (D.C. Cir.
1991); Community Nutrition Institute v. Block, 698 F.2d 1239 (D.C. Cir. 1983); City of Los
Angeles v. Nat'l. Highway Traffic Safety Admin., 913 F.2d 478 (D.C. Cir. 1990).
9. Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) [hereinafter Havens]; Simon
v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976); Allen v. Wright, 486 U.S. 737
(1984).
courts have struggled for the last twenty years with a series of claims
that look familiar to American lawyers and raise issues of access
paralleling the issues of standing confronting American courts,
litigants, and law professors. The Italian legal system, like our own,
has had to reconsider the fundamental issues of who has the right to
sue, who has standing to initiate litigation and invoke the powers of
the courts, and whether to entertain claims that do not involve
traditional bipolar disputes between individuals."°
In Italy, these questions have arisen principally in relation to
environmental issues, but have also involved such matters as sex
discrimination, urban planning, and consumer protection. The
doctrine needed to address these problems has been woven into the
fabric of a civil law system that traditionally views courts as a forum
for the resolution of disputes between individuals, grants limited
power to judges, and hesitates to permit judicial bodies to intervene
in the administration of government.
While the American and Italian systems have been faced with
similar problems, their approaches have begun to differ significantly
in recent years. Despite scholarly criticism, American federal courts
have continued to adhere to strict rules on standing, insisting that
those rules are necessary to protect a variety of important goals. 1
Further, the United States Congress has not ventured beyond the
concepts of standing developed by the federal courts, and has seemed
to acquiesce in its narrow interpretation of Article III's grant of
jurisdiction over "cases or controversies."12
In contrast, over the past twenty years, Italian courts have
somewhat grudgingly begun to broaden the right to sue (especially in
the environmental area). More dramatically, and also in sharp
contrast to the United States, the Italian parliament adopted legislation
that broadens the right of access to the courts in ways that seem
extraordinary to American lawyers and scholars. These environmen-
tal and labor statutes grant the right to act as plaintiffs to organiza-
tions that American law would consider strangers to the claims
involved, and they direct the Italian courts to entertain suits that
would not meet the case or controversy requirement of Article 1II if
they were brought in American courts.
This article reviews the current state of standing law in the
10. See Chayes, supra note 5.

11. See infra part II for an overview of the current rules and the rationales usually given
for them.
12. U.S. CONST. art. III, § 2, cl. 1.
19951 STANDING TO LITIGATE IN THE US. AND ITALY
United States and then offers a brief overview of how Italian courts
have dealt with parallel issues of access to the judicial system. The
article's principal focus, however, is on the recent Italian legislation.
The Italian statutes are discussed not merely because they seem novel
to American lawyers, but rather because of the insight they may offer
into the rationales for the rules of standing adopted in the United
States. The Italian legal system may share many of the same goals
as the American system, such as the preservation of the separation of
powers and the need for parties who will provide vigorous advocacy
to illuminate the issues. Nevertheless, the Italian parliament has
passed laws that seem at odds with American concepts of standing,
apparently concluding that those laws will not undermine the goals
inherent in more traditional approaches to controlling access to the
courts.' 3
The last section of the article attempts to draw the American and
Italian systems together and answer some interrelated questions:
What are the implications for the analysis of standing in
the United States of the Italian statutes that seem to sweep
aside the kinds of restrictions on access that have tradition-
ally characterized civil procedure in both countries?
What does the Italian experience tell us about the need for
our elaborate rules on "injury in fact?"
If the Italian rules on standing are intended to serve the
same goals as ours, how can the Italian judicial system
(and political structure) tolerate statutes that appear to
allow strangers to litigate cases?
Are there reasons why the American system would not
tolerate suits by similar plaintiffs?
In evaluating American practice in light of the Italian experi-
ence, I recognize the danger of transplanting one country's rules of
civil procedure into another, and I acknowledge the complexity and
13. It is beyond the scope of this article to explore the experiences of other countries
that have adopted similar laws. For a discussion of statutes in other countries, see
PARTICIPATION AND LITIGATION RIGHTS OF ENVIRONMENTAL ASSOCIATIONS IN EUROPE (M.
Fuhr and G. Roller eds. 1991); Taylor and Head, Representing Collective Interests in Civil
Litigation: A Comparative Synopsis, 58 U. DET. J. URB. L. 587 (1981) (Canada, England,
France and Germany); d'Oliveira, ProtectionofDiffuse, Fragmentedand Collective Interests
in Civil Litigation,30 NETHERLANDS INT'L L. REV. 161 (1983) (the Netherlands); Greve, The
Non-Reformation of Administrative Law: Standing to Sue and PublicInterest Litigation in
West German Environmental Law, 22 CORNELL INT'L L.J. 197 (1989) (Germany); Cane,
Standing,Legality and the Limits ofPublicLaw: The Fleet Street Casuals Case, 1981 PUB.
LAW 322.
potential incompatibility of legal cultures. Nevertheless, I have

concluded that the Italian experience shows that it is an oversimplifi-
cation to do no more than recite the language of "separation of
powers" and "concreteness" and assert that our rules on injury in fact
are essential to those rather amorphous goals. A review of the Italian
law indicates that the issue is more complicated than American courts
have acknowledged and that the practical effects of American rules
on standing should be reexamined.
II. AN OVERVIEW OF THE LAW OF STANDING N THE UNITED STATES
Repetition of the well known rules on standing may be justified

here because, if Professor Sunstein is correct, the Supreme Court's
1992 decision in Lujan v. Defenders of Wildlife" "significantly
shifts" the American law of standing and "may well be one of the
most important standing cases since World War 1. "15 As explained
below, I agree with Professor Sunstein's assessment that Lujan
sharply restricts Congress' power to confer standing on the federal
courts. A review of the American law of standing is also appropriate
because one of the purposes of this article is to summarize U.S.
standing law for the use of Italian scholars who have attempted to
draw parallels in discussing the problems of representation of diffuse
interests and the need for reform of civil procedure generally. 6
14. 112 S.Ct. 2130 (1992).

15. Sunstein, What's StandingAfter Lujan? OfCitizen Suits, "Injuries," andArticle III,
91 MICH. L. REv. 163, 165 (1992).
16. Professor Vincenzo Vigoriti's important and oft-cited 1979 book on standing to
assert collective interests states that U.S. law "regulates standing in a manner almost identical
to that existing in Italy. . ." (". . . regola la legittimazione ad agire in maniera pressoch6
identica a quella prevalente in Italia. . ."). VIGORrfl, INTERESSI COLLETT1VI E PROCESSO -
LA LEGITIlMAZIONE AD AGIRE (1979) at 69. Professor Vigoriti reads U.S. standing law as
"rigidly anchored in the idea of entitlement (titolarid)to the right or obligation to initiate
or be subjected to litigation whose object is a 'legally protected interest."' ("rigidamente
ancorataall'ideadella titolaritd del potere o del dovere di promuolvere o subire ilgiudizio
avente per oggetto un 'legally protected interest' .. .") Id. at 71. He also states,". . . in
general, a civil suit must be brought by the person or persons who have the right under
substantive law to the remedy sought... "Id. (citing Rule 17 of the Federal Rules of Civil
Procedure and Flast v. Cohen, 392 U.S. 83, 99-100 (1968)). As explained below, Professor
Vigoriti may be correct in saying that Italian standing law is like Flast, at least in the
absence of legislation to the contrary, even if the U.S. law no longer conforms to that
precedent.
1995] STANDING TO LITIGATE 1N THE US. AND ITALY
A. The Common Law of Standing in the FederalCourts

Although Justice Rehnquist stated that the American rules on
standing to sue cannot be reduced to a single sentence,17 they can be
reduced to a generally agreed upon formula. Justice Scalia recently
did this in Lujan:
Over the years, our cases have established that the irreduc-
ible constitutional minimum of standing contains three
elements: First, the plaintiff must have suffered an "injury
in fact"- an invasion of a legally-protected interest which
is (a) concrete and particularized, see [Allen v. Wright, 468
U.S. 737 (1984)] at 756; Warth v. Seldin, 422 U.S. 490,
508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-41,
n.16 (1972); and (b) "actual or imminent, not 'conjectural'
or 'hypothetical,"' Whitmore [v. Arkansas, 495 U.S. 149
(1990)] at 155 (quoting Los Angeles v. Lyons, 461 U.S.
95, 102 (1983)). Second, there must be a causal connec-
tion between the injury and the conduct complained
of--the injury has to be "fairly . ..trace[able] to the
challenged action of the defendant, and not... th[e] result
[of] the independent action of some third party not before
the court." Simon v. Eastern Kentucky Welfare Rights
Org., 426 U.S. 26, 41-42 (1976). Third, it must be "like-
ly," as opposed to merely "speculative," that the injury will
be "redressed by a favorable decision." Id. at 38, 43.' s
Where an organization wishes to be a plaintiff, it will have
standing to sue on behalf of its members ("associational" standing) if
"(a) its members would have standing to sue in their own right; (b)
the interests it seeks to protect are germane to the organization's
purpose; and (c) neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit." 19
In some circumstances, organizations also have the right to sue on
17. Valley Forge Christian College v. Americans United for Separation of Church and
State, 454 U.S. 464, 475 (1982).
18. 112 S.Ct. at 2136.
19. Competitive Enterprise Institute v. NHTSA, 901 F.2d. 107, 111 (D.C. Cir. 1990)
(citing Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977)).
Hunt's emphasis on the relationship between an organization and its members was refined
in later cases. See, e.g., Health Research Group v. Kennedy, 82 F.R.D. 21 (D.D.C. 1979)
(organization did not have standing to sue to represent the interests of "supporters" and
"contributors" who had no direct control over the organization); American Legal Found. v.
F.C.C., 808 F.2d 84, 90 (D.C. Cir. 1987) (organization not the "functional equivalent of a
traditional membership organization").
their own behalf, independent of the interests of their members. To

meet the requirements of this organizational standing, an organization
must show some concrete injury to its own interests; it might show,
for example, that the defendant's acts have interfered with its
fandraising or educational functions. It is not enough for the
organization to allege an injury to "abstract social interests. 20
These requirements are the core of standing, and are generally
said to be based on the requirement of Article HI of the U.S.
Constitution that limits federal courts to the adjudication of "cases or
controversies." In addition to these core constitutional requirements,
the courts have also adopted "prudential" limitations restricting a
plaintiff s right to litigate so-called "generalized grievances"21 ' and
to assert what could be considered to be the rights of another
person.' Finally, in cases brought under the Administrative Proce-
dure Act, and perhaps in some constitutional cases, there is the
additional requirement that the plaintiff be within the "zone of
interest" of the underlying statute on which the claim is based.23
The reasons asserted for the various elements of the standing
requirement are also familiar. The rules on standing are said to
preserve the system of separation of powers set out in the Constitu-
tion, by ensuring that the federal courts only decide concrete cases
presented to them and do not intrude on the power of the executive
and legislative branches.24 The standing rules are also said to ensure
that the courts have parties before them who have enough of an
interest in the outcome of the case to make sure the issues are
presented in a vigorous and fully adversarial fashion. The pruden-
tial standing rules limiting the representation of the rights of third
persons have also been justified on the grounds that they protect the
20. See Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982); Competitive Enter. Inst,
Inc. v. Nat'l Highway Traffic Safety Admin., 901 F.2d 107 (D.C. Cir. 1990); American Legal
Found. v. F.C.C., 808 F. 2d 84 (D.C. Cir. 1987).
21. United States v. Richardson, 418 U.S. 166 (1974).
22. See, e.g., Warth v. Seldin, 422 U.S. 490 (1975). So long as an injury in fact to the
putative plaintiff is alleged, however, a claim can be brought based on the alleged violation
of the rights of another person. For an example of this third-party standing, see Havens
Realty Corp. v. Coleman, 455 U.S. 363 (1982).
23. Clarke v. Securities Industry Assn., 479 U.S. 388 (1987); Air Courier Conference
of America v. Postal Workers Union, 498 U.S. 517 (1991).
24. See Antonin Scalia, The Doctrine of Standing as an Essential Element of the
SeparationofPowers, 17 SUFFOLK U. L. REV. 881 (1983), and discussion infra at part IV.A.
25. See Baker v. Carr, 369 U.S. 186 (1962) and discussion infra at part IV.B.
1995] STANDING TO LITIGATE IN"T7E US. AND ITALY
autonomy of those who are not present.26

These rules and the reasons asserted for them have come under
substantial criticism, with many scholars asking whether the goals
allegedly served by the current rules are necessary for the courts to
carry out their functions.27 Critics inside and outside the academic
community have also asked whether the existing rules actually serve
different ends not articulated or admitted by the courts.28
Despite the scholarly criticism, what the courts at least say they
are doing is clear enough. The courts continue to recite the rubrics
of "core requirements" and "prudential factors," and the inquiry into
standing in U.S. federal courts remains intensively fact-oriented. The
court-made law of standing leads to extensive preliminary litigation
and remains
29
a continuing source of problems and a major barrier to
access.
B. Standing and the Congress

Recognizing the restrictions on standing created by the courts,
the U.S. Congress has occasionally responded by identifying in very
26. See Lea Brilmayer, The JurisprudenceofArticle III: Perspectives on the "Case or
Controversy" Requirement, 93 HARV. L. REV. 297 (1979) (suggesting that the core rules on
standing, as well as the prudential ones, also protect the autonomy of nonparties).
27. See, e.g., Mark V. Tushnet, The New Law of Standing: A Pleafor Abandonment,
62 CORNELL L. REV. 663 (1977); Cass R. Sunstein, Standing and the PrivatizationofPublic
Law, 88 COLum. L. REV. 1432 (1988); William A. Fletcher, The Structure ofStanding, 98
YALE L.J. 221 (1988); Gene R. Nichol, Jr., Injury and the DisintegrationofArticle 11, 74
CAL. L. REV. 1915 (1986); Donald L. Doernberg, "We the People": John Locke, Collective
ConstitutionalRights and Standing to Challenge Government Action, 73 CAL. L. REV. 52
(1985); Susan Bandes, The Idea of A Case, 42 STAN. L. REV. 227 (1990).
28. The scholarship cited above suggests that the current rules on standing serve to
disguise what are essentially decisions on the merits, in the sense that they involve an
analysis of the nature of the underlying substantive claim. See Winter, supra note 4.
29. State courts generally allow easier access to plaintiffs than federal courts since they
are not restricted by Article III's case or controversy requirement or the Supreme Court's
interpretation of it. JAMES RADCLIFFE, THE CASE AND CONTROVERSY PROVISION 84 (1978).
Alabama, Colorado, Florida, Maine, Massachusetts, New Hampshire, and North Carolina
allow advisory opinions. Brilmayer, supra note 26, at 299 n.7 (quoting HART & WECHS-
LER'S FEDERALISM AND THE FEDERAL SYSTEM). See also 13A CHARLES A. WRIGHT,
ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3531.14
(1969) (arguing that state courts have the right to give advisory opinions on the Federal
Constitution). Twelve states presently have statutes granting citizens standing to sue for
potential or actual environmental harm. W. Scott Magargee, Note, Protecting the
Environment: Creating a Citizen Standing-to-Sue Statute in Virginia, 26 U. RICH. L. REV.
235, 244 n.62. New York and Massachusetts have statutes allowing "any citizen" or "any
resident" to challenge the legality of governmental action. 4 KENNETH C. DAVIS,
ADMINISTRATIVE LAW TREATISE § 24:6 (1979).
COLUMBIA JOURVAL OF TRAINSNA TIONAL LAW [33:259
broad terms the parties entitled to bring suit to enforce the statutory
rights it creates. In light of similar efforts by the Italian parliament,
it is important to consider the limitations that may apply to Congress'
authority to grant standing. Apparently, the principal limitation is the
constitutional requirement that the federal courts only have jurisdic-
tion over "cases or controversies," and the federal courts have
concluded Congress cannot direct them to issue decisions in matters
that do not meet that minimum requirement.3
The most recent Supreme Court discussion of the issue is Justice
Scalia's in Lujan, where a national environmental organization with
a particular interest in protecting animals challenged a joint ruling by
the Secretaries of the Interior and Commerce under the Endangered
Species Act (ESA).31 The Secretaries, reversing an earlier position,
had determined that the requirement in Section 7 of the ESA for each
federal agency to consult with the Secretary of the Interior to ensure
that any action funded by the agency did not jeopardize an endan-
gered species only applied to projects undertaken in the United States
and the high seas, not to projects in foreign countries. The environ-
mental organization Defenders of Wildlife claimed the Secretaries
misinterpreted the ESA and alleged that the failure to consult on
foreign projects "increas[es] the rate of extinction of endangered and
threatened species., 32 Relying on the "associational standing" test
in Hunt v. Washington Apple Advertising, the organization claimed
standing based on declarations of two of its members who stated they
had previously observed specific endangered species (crocodiles,
elephants and leopards) in specific foreign countries (Egypt and Sri
Lanka) and intended to do so again.33
Justice Scalia's opinion held that the organization did not have
standing. While recognizing that the Court had previously held that
"the desire to use or observe an animal species, even for purely
30. The Supreme Court stated very early in its history, for example, that it would not
issue advisory opinions, even if another branch of the government requested it to do so. See
Correspondenceof the Justices (1793), in HART & WECHsLER'S THE FEDERAL COURT AND
THE FEDERAL SYSTEM 64 (2d ed. 1973) [hereinafter HART & WECHSLER's]. I say that
Article III's "case or controversy" provision is the principal limitation on Congress' authority
to confer standing, but Justice Scalia's opinion in Lujan points out another potential
limitation: the "take care" provision in Article II.
31. Endangered Species Act, Pub. L. No. 93-205, 87 Stat. 884 (1973) (codified
principally in scattered sections of 15 U.S.C.).
32. 112 S.Ct. at 2137.
33. Section 1l(g)(1) of the Endangered Species Act provides "any person may
commence a civil suit on his own behalf. . . " to compel compliance with the Act.
Endangered Species Act §102, (current version at 16 U.S.C. §1540(g) (1982)).
1995] STANDING TO LITIGATE IN THE US AND ITALY
aesthetic purposes, is undeniably a cognizable interest for purposes of

standing," Scalia concluded the alleged injury was not sufficiently
imminent, since the two members did not state specifically when they
intended to return to observe the animals in question. He also
found that the organization had not met the "redressability" require-
ment, since it was not clear (at least in Scalia's mind) that changing
the Secretaries' ruling would have any effect on actions of the other
federal agencies or on the foreign projects involved."
Both the "injury" and "redressability" portions of Justice Scalia's
opinion further tighten the Court's requirements for standing; in
dissent, Justice Blackmun called the opinion a "slash-and-bum
expedition through the law of environmental standing. 3 6 The most
interesting part of Justice Scalia's opinion is his discussion of the
scope of Congress' power to confer standing. It is his view that
"injury in fact" is the constitutional minimum for a "case or contro-
versy" and that it is the federal courts' responsibility to define what
"injury in fact" means. The opinion in Lujan repeatedly states two
important principles: Congress cannot confer standing on persons who
do not have an "injury in fact", and there are limits on Congress'
power to define what is an "injury in fact".37 Scalia states that
Congress cannot confer standing based on what he refers to as a
merely "procedural" injury unless disregard of the procedural
requirement, such as the requirement to consult on the impact of
34. 112 S.Ct. at 2137. "Such 'some day' intentions-without any description of concrete
plans, or indeed even any specification of when the some day will be--do not support a
finding of the 'actual or imminent' injury our cases require." 112 S.Ct. at 2138 (emphasis
in original). Justice Scalia also rejected (with apparent sarcasm) plaintiff's "nexus" theories,
under which Defenders of Wildlife argued that the government's actions had an impact on
the shared ecosystem, on members' interests in observing animals, and on the professional
interests of some members who worked with animals in captivity. Scalia labelled these
theories "beyond all reason" and based on "pure speculation and fantasy." 112 S.Ct. at
2139-40.
35. 112 S.Ct. at 2140-42.
36. 112 S.Ct. at 2160.
37. "To say that the [Endangered Species] Act protects ecosystems is not to say that the
Act creates (if it were possible) rights of action in persons who have not been injured in fact,
that is, persons who use portions of an ecosystem not perceptibly affected by the unlawful
action in question." 112 S.Ct. at 2139 (emphasis added). It does not appear that any
members of the Court disagree with that point. Even Justice Blackmun's dissent
acknowledges that "[t]here may be factual circumstances in which a congressionally imposed
procedural requirement is so insubstantially connected to the prevention of a substantive
harm that it cannot be said to work any conceivable injury to an individual litigant." 112
S.Ct. at 2160.
government funding, will impair a "separate concrete interest. '

Rejecting what he characterized as the lower court's view that "the
injury in fact requirement had been satisfied by congressional
conferral upon all persons of an abstract, self-contained, noninstru-
mental 'right' to have the Executive observe the procedures required
by law,"39
' Scalia cites the "generally available grievances" cases for
the proposition that "seeking relief that no more directly and tangibly
benefits [the plaintiff] than it does the public at large ... does not
state an Article III case or controversy.'4
The Scalia opinion goes on to make clear that, in the Justice's
view, standing is based squarely on notions of separation of powers
and that Congress' power to confer authority on the courts by
defining "injury in fact" is limited.41 Some other members of the
Court seem uncomfortable with Justice Scalia's sweeping expression
of these limitations. In his concurring opinion, Justice Kennedy states
"[i]n my view, Congress has the power to define injuries and
articulate chains of causation that will give rise to a case or contro-
versy where none existed before, and I do not read the Court's
38. 112 S.Ct. at 2142. Justice Scalia refers to the interest in living in an integrated
community as a "concrete, defacto injury... previously inadequate in law," 112 S.Ct. 2145.
He would presumably then agree that an interest in receiving accurate information about
housing opportunities is also sufficiently concrete, even though that right did not exist before
Congress created it. See Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).
39. 112 S.Ct. at 2143.
40. Id. Justice Scalia seems to be transforming the "generalized grievance" limitation
from a prudential consideration that can be waived or set aside by Congress into one of the
"core" elements of standing. At a minimum, his decision imports into the definition of
"injury in fact" an element of the generalized grievance principle, suggesting that an injury
that is shared with all other citizens cannot be sufficiently "concrete" to'meet the case or
controversy requirement. In other words, such a shared injury cannot be an "injury in fact."
41. "Whether the courts were to act on their own, or at the invitation of
Congress, in ignoring the concrete injury requirement described in our
cases, they would be discarding a principle fundamental to the separate
and distinct constitutional role of the Third Branch--one of the essential
elements that identifies those 'Cases' and 'Controversies' that are the
business of the courts rather than of the political branches."
".... under Article III, Congress established courts to adjudicate cases and
controversies as to claims of infringement of individual rights whether by
unlawful action of private persons or by the exertion of unauthorized
administrative power. Individual rights, within the meaning of this
passage, do not mean public rights that have been legislatively pronounced
to belong to each individual who forms part of the public."
112 S.Ct. at 2144-45 (citations omitted).
1995] STANDING TO LITIGATE IN THE US. AND ITALY
opinion to suggest a contrary view." 2 However, Justice Blackmun

seems to read the majority opinion to do just that: "I fear the Court
seeks to impose fresh limitations on the constitutional authority of
Congress to allow citizen-suits in the federal courts for injuries
deemed 'procedural' in nature."43
It is not the purpose of this article to explore all aspects of Lujan
or to determine whether Justice Scalia's views make sense as a matter
of law or policy. The present significance of the opinion lies in
Justice Scalia's pronouncement, apparently joined by all the other
members of the Court, that "injury in fact" is constitutionally required
and his announcement, which may not be shared by others on the
Court, that Congress does not have the final word in defining what
a constitutionally sufficient injury in fact is.
It should be noted that even before the most recent Lujan
decision, the courts have seemed to assume that Congress recognized,
and felt itself restricted to, the "injury in fact" formula. For example,
the courts found that Congress intended in the Fair Housing Act to
create a new "right" and to define what constitutes an "injury" to that
right.' In response, the courts have tried to put their own judicially
manufactured label on such legislative action, trying to fit various
congressional pegs (the creation or definition of rights to sue) into a
42. 112 S.Ct. at 2146-47. Justice Kennedy adds: "In exercising this power [to define
injuries and articulate chains of causation], however, Congress must at the very least identify
the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring
suit." Id. at 2147.
43. 112 S.Ct. at 2151-52. Some scholars also disagree with Justice Scalia's view of the
relative roles of Congress and the courts. Professor Davis says that the authority of federal
courts is not limited to cases involving an "injury in fact" at all:
On the question of whether Congress may determine who has standing, the
relevant provision could be Article I, which confers upon Congress the
power to create rights. If Congress may confer rights upon a class of
persons, Congress may also confer rights to be plaintiffs.
DAVIs, ADMINISTRATIVE LAW TREATISE §24:5 at 226 (emphasis in original). Professor
Sunstein agrees. Sunstein, supra note 16. Professor Logan suggests that, if there is a
constitutional requirement of "injury in fact," there is "an obvious tension . . . between
Congress' expansive powers under Article I to describe rights and concomitant judicial
remedies on one hand and Article Ill's limitations of federal court jurisdiction to cases and
controversies." Logan, Standing to Sue: A ProposedSeparation of Powers Analysis, 1984
WISC.L. REV. 37, 59 (1984). Cf.Sunstein, supra note 16, at 174-80. ("Congress is allowed
to create judicially cognizable injuries whenever it chooses because the question of 'case and
controversy' is one of positive law, and therefore, for the Congress to decide.")
44. See Havens, supra note 9, at 374-75.
COLUMBIA JOURNAL OF TRANSNATIONAL LAW [2
[33:259
judicially designed hole (the requirement of an injury in fact).45 No

court has been willing to say, however, that this labelling process is
artificial and that Congress can simply dispense with the "injury in
fact" requirement. Lujan makes clear that a majority of the current
Supreme Court agrees.
But what if the Congressional peg just will not fit into the
constitutionally defined hole? Could Congress adopt a statute giving
an organization interested in housing discrimination the right to sue
to enforce any provision of the housing discrimination statutes? What
sort of findings would Congress have to recite about an "injury" to
that organization or to its members? If Congress made sufficiently
detailed findings, would a court have to accept those findings, or
could it conclude that those findings were not constitutionally
sufficient to create an injury in fact? At what point would Congres-
sional findings of injury become too attenuated or speculative for the
federal courts to swallow?" In the American federal system, these
issues are presently unresolved, despite the mass of scholarly
comment addressed to them. For present purposes, it suffices to say
that there are serious questions about the scope of Congress'
authority. While 'the dicta in Lujan is not likely to be the final
judicial pronouncement on the issue, the opinion does demonstrate
that any attempt by Congress dramatically to expand standing will
face a serious constitutional challenge. This state of events contrasts
sharply with the recent Italian experience.
In. THE ITALIAN PARALLEL
A. The Italian Doctrine Relating to "Standing"

If the American system of standing remains mired in a judicially
mandated search for some sort of imminent personal injury and a link
between that injury and the relief sought, the Italian system seems to
45. For an extreme example of such a case, see United States Parole Comm'n v.
Geraghty, 445 U.S. 388 (1980), where the Court found that a former prisoner challenging the
Parole Release Guidelines had standing to seek class certification under Federal Rule 23,
even though he had been released and his counsel conceded that he would receive no
personal relief from the case. In dissent, Justice Powell noted that "even Congress may not
confer federal-court jurisdiction when Article m does not," and suggested the Court was
finding an injury in fact that was "indeed an empty one." Id. at 420-21.
46. For example, could Congress endorse any of the three nexus theories proposed by
Defenders of Wildlife? Could Congress make findings that the elimination of certain species
will have a direct impact on the organization and thus confer "organizational," rather than
"associational," standing on it?
1995] STANDING TO LITIGATE IN T=E U.. AND ITALY
be shaking free of old strictures, largely due to legislative action. To

understand the context in which this has occurred, some basic
information about the Italian legal system is necessary.47 Discussion
of the Italian legal system is simplified somewhat by the fact that, in
general, Italy has a unitary centralized court system that implements
laws adopted by a single national bicameral legislature (parla-
mento).48 The Italian courts can generally be divided into two types:
administrative and ordinary courts. The administrative courts, acting
through Regional Administrative Tribunals (tribunali amministrativi
regionali,or "TARs") and an appellate tribunal, the Council of State
(consiglio di stato), have jurisdiction over cases seeking nullification
of governmental actions alleged to be unlawful. The "ordinary"
courts have jurisdiction over most other cases, including those in
which a monetary remedy against the government is sought.' The
principal sources of Italian law, and of the powers of the courts and
legislature, are the Constitution of 1947 and the various codes,
including the Civil Code (Codice Civile) (originally adopted in 1942)
and the Code of Civil Procedure (Codice di Procedura Civile)
47. For general descriptions of the Italian legal system, see G.L. CERTOMA, THE
ITALIAN LEGAL SYSTEM (1985); MAURO CAPPELLETrI ET AL., THE ITALIAN LEGAL SYSTEM:
AN INTRODUCTION (1965) [hereinafter CAPPELLETrI, ITALIAN LEGAL SYSTEM]; WORLD
LITIGATION LAW AND PRACTICE, Unit B, vol. 2 - Italy; DENTI, LA G1usTIzIA CIvILE (1989);
PIZZORUSSO, L'ORGANIZZAZIONE DELLA GIUSTIZIA IN ITALIA (1985); Mauro Cappelletti &
Pietro Rescigno, Italy, 1 INT'L. ENCYCLOPEDIA COMP. L. 1-93 (1973).
For specific information on civil procedure, see ITALIAN YEARBOOK OF CIVIL
PROCEDURE (E. Fazzalari and M. Sheridan eds. 1991); and MAURO CAPPELLETTI & JOSEPH
PERILLO, CIVIL PROCEDURE IN ITALY (1965) [hereinafter CAPPELLETTI, CIVIL PROCEDURE].
There is useful insight into problems of Italian civil procedure, especially in connection with
class action issues, in Cappalli and Consolo, Class Actions for Continental Europe? A
PreliminaryInquiry, 6 TEMP. INT'L. & COMP. L.J. 217 (1992). Italian treatises on civil
procedure are numerous (although their conclusions about the issues and their doctrinal
significance are not always consistent with each other). In drafting this article, I have relied
on MANDRIOLI, CORSO DI DnIrmro PROCESSUALE CIVILE, (1989) [hereinafter MANDRIOLI,
CoSo].
48. Some legislative and administrative authority has been delegated to regions, such
as Sicily and Trentino-Alto Adige.
49. See PIZZORUSSO, supra note 47, at 14 (noting that one can sue the government in
the ordinary courts if seeking compensatory damages (risarcimentodei danni arrecati),but
must sue in the administrative courts to obtain annulment of an administrative action). See
also CAPPELLETTI, ITALIAN LEGAL SYSTEM, supra note 47, at 82. Mandrioli explains that one
key difference between the activities of the ordinary courts (giurisdizione)and that of the
administration of the government (amministrazione)is that the former is impartial, while the
goal of the administration (including presumably the administrative courts) is to carry out or
effect (attuare)the interests of the state. MANDROLI, CORSO, supra note 47, §7, at 32. There
are also other specialized courts, like the Court of Accounts (Corte dei Conti) and the tax
courts.
(originally adopted in 1940).5o

The answer to the question of how Italian law determines if a
person or a group can initiate litigation needs to be sought in two
ways: first, by examining the "doctrine" (la dottrina), essentially the
various codes, statutes, and (very importantly) the writings of
scholars; and second, by examining the decisions of the courts (la
giurisprudenza). It is important to understand the primacy of
"doctrine" as a source of law. 1 It is also critical to recall that, at
least in theory, judges in a civil law system like the Italian one do not
"make law" in issuing decisions in particular cases, 2 and there is
therefore no formal system of stare decisis."3
50. The Code of Criminal Procedure (Codice di procedurapenale), originally adopted

in 1930, was extensively revised in 1989. See William T. Pizzi & Luca Marafioti, The New
ItalianCode of CriminalProcedure:The Difficulties ofBuilding an AdversarialTrial System
on a Civil Law Foundation, 17 YALE J. INT'L L. 1 (1992); Louis F. Del Duca, An Historic
Convergence of Civil and Common Law Systems - Italy's New "Adversarial" Criminal
ProcedureSystem, 10 DICK. J. INT'L L. 73 (1991); Lawrence J. Fassler, Note, The Italian
PenalProcedureCode: An AdversarialSystem ofCriminalProcedurein ContinentalEurope,
29 COLUM. J. TRANSNAT'L L. 245 (1991); Ennio Amodio & Eugenio Selvaggi, An
AccusatorialSystem in a Civil Law Country: The 1988 Italian Code of CriminalProcedure,
62 TEMP. L. REv. 1211 (1989).
Efforts to revise the Code of Civil Procedure have been underway for years. Some
reforms were enacted after considerable delay in 1990, but the changes do not affect the
procedures discussed in this article. See Richard B. Cappalli, "The Style and Substance of
Civil Procedure Reform: Comparison of the United States and Italy," 16 Loy. L.A. INT'L.
& COMI. L.J. 861 (August 1994).
51. "Realistically speaking, the law in Italy is to a large extent what the scholars say
it is." CAPPELLErI, ITALIAN LEGAL SYSTEM, supra note 47, at 243. See also Giuseppe di
Federico, The Italian JudicialProfession and its BureaucraticSetting, 21 JURID. REv. 40,
45 (1976); JOHN HENRY MERRYMAN, THE CIvIL LAW TRADITION 56 (2d ed. 1985).
Professor Cappelletti's observation still seems true 25 years later. This emphasis on the
writing of scholars and the lack of emphasis given to case law is surprising to an American
lawyer attempting to penetrate the intricacies of the Italian legal system and to find the law.
52. Judicial decisions are not considered to be "sources of law" (fonti del diritto). See
Giovanni Bognetti, The Judicial Process in Italy, in 8 COMPARATIVE LAW YEARBOOK 73
(Center for International Legal Studies ed., 1986); Vincenzo Vigoriti, Access to Justice in
Italy, in I ACCESS TO JUSTICE - A WORLD SURVEY (1978); MAURO CAPPELLETTI,
COMPARATIVE LAW, 546 (citing the case of Vigo v. Fromenti); Maria Rosaria Volcansek,
The JudicialRole in Italy: Independence, Impartialityand Legitimacy, 73 JUDICATURE 322
(Apr.-May 1990); Mary L. Ferrarese, Civil Justice and the JudicialRole in Italy, 13 JUST.
Sys. J. 168 (1988-89); John Henry Merryman, The Italian Style III: Interpretation,18 STAN.
L. REV. 583, 591, 604-07 (1966); Vincenzo Varano, Appellate Proceedingsin Italy, 89 STUDI
SENESI 359, 396 (1977); Nicolo Trocker, Judicial Responsibility in Italy, in ITALIAN
NATIONAL REPORTS TO THE XITH INTERNATIONAL CONGRESS OF COMPARATIVE LAW
(CARACAS 1982), at 222 (1982) [hereinafter Trocker, JudicialResponsibility].
53. A significant exception to this point is that a decision of the Constitutional Court
holding a statute unconstitutional renders that statute null and void, removing it from the
books the day after the Court's decision is published in the Gazzetta Ufficiale. In this sense,
its decisions are binding on lower courts and have the effect of precedent A decision of the
This is not to suggest judges are free to decide cases without any
attention to the need for consistency and predictability, or that Italian
judicial decisions do not refer to earlier decisions. 4 There are
pressures on judges to act consistently, and reported cases do
typically cite earlier cases to illustrate or support the logic of the
decision being made. 5 However, because of the lack of stare
decisis and a formal rule of precedent, a decision in an individual
case does not have to bear the burden of subsequent analysis (and
citation as "the law") that attaches to decisions in a common law
country like the United States. 6 As is explained below, the fact that
case decisions are not generally binding on later courts has significant
Constitutional Court holding that a statute is constitutional is not formally binding on lower
courts; the same challenge to constitutionality can be raised in subsequent proceedings. See
Pizzorusso, The ConstitutionalReview of Legislation in Italy, 56 TEMP. L.Q. 503 (1983);
Vincenzo Vigoriti, Admonitory Functions of Constitutional Courts:Italy, 20 AM. J. CoMP.
L. 404 (1972); Giovanni Bognetti, DirectApplication andIndirectImpact ofthe Constitution
in the Italian Legal System, ITALIAN NATIONAL REPORTS TO THE XITH INTERNATIONAL
CONGRESS OF COMPARATIVE LAW (CARACAS 1982) 429,431 (1982). The precedential effect
of Constitutional Court decisions is also discussed below at page 318.
54. See Giuseppe di Federico and Carlo Guarnieri, The Courts in Italy, in THE
POLITICAL ROLE OF LAW COURTS IN MODERN DEMOCRACIES 153-80 (Jerold Waltman &
Kenneth Holland eds. 1988) [hereinafter di Federico & Guamied]; di Federico, supra note
51, at 50-52 (concerning the bureaucratic setting of Italian judges); Trocker, Judicial
Responsibility, supra note 52, at 223 (regarding the possible impact of judicial promotion
procedures on the decision-making process).
55. See di Federico & Guamieri, supra note 54, at 174, for an analysis of the important
role played by decisions of the Court of Cassation, which is essentially the Supreme Court
of Italy for non-constitutional issues. Their conclusion is that "it seems doubtful that judicial
decisions are de facto less binding in the Italian judicial process than in countries where
judges are formally bound by judicial precedents.. . ." Id. at 175.
56. As a result of the limited role assigned to the dispositions in particular cases, the
decision in a case may set out only a summary of the results, without the extensive analysis
and citation of "authority" and attention to factual details and distinctions that characterize
American court decisions. Professor Cappelletti notes that Italian cases are not particularly
concerned with "nice factual distinctions." CAPPELLEI=, CIVIL PROCEDURE, supra note 47,
at 182.
In addition, the publication of decisions is not as comprehensive as it is in the
United States. Vincenzo Franceschelli, The Problems of UnpublishedDecisions, in ITALIAN
NATIONAL REPORTS TO THE XIITH INTERNATIONAL CONGRESS OF COMPARATIVE LAW
(1986) 417 (1986). Decisions of the Constitutional Court are published in the Gazzetta
Ufficiale, and summaries of decisions of the Court of Cassation are published in Foro
Italiano, GiurisprudenzaItaliana, or GiurisprudenzaCivile. Decisions of the lower courts
are published "only if they attract the attention of the editors of law reviews around the
country." Id. at 419.
Actually, many lower court decisions are published, often with extensive comments,
in Italian legal journals. These journals, which are not written and edited by law students
but rather by editorial boards of scholars, often focus on specialized areas of the law or on
case decisions from particular parts of the country. See CAPPELLETTI, ITALIAN LEGAL
SYSTEM, supra note 47, at 251-53, quoted in Varano, supra note 52, at n.55.
implications for an analysis of rules relating to access to the courts.

While the Italian civil law system looks different from our
common law system in many respects, both systems must deal with
the same threshold question of deciding who has the "right to seek
judicial enforcement of a claimed legal duty."57 Access to the
Italian courts depends on the ability of the party (attore)to show that
the elements of an action (azione) exist. Those elements are interesse
ad agire and legittimazione ad agire,and the court has to be satisfied
that the plaintiff has alleged both. 8 These terms, and their relation-
ship to the law of standing, are briefly discussed below.
The concept of interesse ad agire, which might be translated as
an "interest in acting," is found in Article 100 of the Code of Civil
Procedure.5 9 That provision has been interpreted in a general way
to require that a complainant present something more than a hypothet-
ical question.' Article 100 is not a part of the Constitution, but
rather is simply a provision of the Code that governs practice in civil
57. Fletcher, supra note 27, at 227.

58. Mandrioli explains, "In this sense, the azione is a right to a decision on the merits,
although not to a favorable decision; more precisely, it is a right to seek a decision on the
merits that the acting party would consider to be a favorable one." ("In questo senso,
l'azione 6 diritto ad un prowedimento sul merito, e non ad un provvedimento favorevole:
pit precisamentead un provvedimento sul merito che, solo nell'aspirazionedi chi agisce (o
attore), sipresentacome favorevole.') MANDRIOLI, CORSO, supra note 47, at 60 (emphasis
in original).
59. "To file a complaint or to answer one it is necessary to have an interest in it." (Per
proporreuna domanda o per contraddirealla stessa j necessarioavervi interesse.) C.P.C.
art. 100.
60. See CARPI, CoLEsANTi AND TARuFFO, COMmENTARiO BREVE AL CODICE DI
PROCEDURA crvILE 173 (1988) [hereinafter CARPI, COMvmNTARY]. ("The interessead agire
has to be concrete and current, not just theoretical and generic, since a judge is not granted
the power to resolve purely abstract and academic questions that are not related to a concrete
controversy." ("L'interesse ad agire deve essere concreto ed attuale, non solo teorico o
generico, poichi al giudice non d consentito risolvere questioni puramente astratte ed
accademiche, che non siano attinenti ad una concreta controversia.")
This description of interesse ad agire mirrors Chief Justice Hughes' interpretation
of Article III(as of 1937):
A 'controversy' in this sense must be one that is appropriate for judicial
determination. A justiciable controversy is thus distinguished from a difference
or dispute of a hypothetical or abstract character; from one that is academic or
moot. The controversy must be definite and concrete, touching the legal
relationships of parties having adverse legal interests. It must be a real and
substantial controversy admitting of specific relief through a decree of conclusive
character, as distinguished from an opinion advising what the law would be upon
a hypothetical state of facts.
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (citations omitted). See also David
A. Logan, Standing to Sue: A ProposedSeparationofPowersAnalysis, 1984 Wisc. L. REV.
38, n.4 (referring to the above description as "the classic description").
cases. Nevertheless, that provision of the Code of Civil Procedure

seems to be the closest equivalent in the Italian system to the
American "case or controversy" requirement.61 The Italian parlia-
ment can therefore confer interesse ad agire and may do so in
statutes like the 1986 environmental law (discussed below) even if
does not say explicitly that it intends to do so. Presumably, a court
would not be able to refuse to consider a case brought in compliance
with such a statute.
Italian scholars disagree over the theoretical and practical
significance of Article 100 of the Code of Civil Procedure.62
However, the practical effect of the interesse ad agire requirement
has apparently been limited, and it has not been used like the
American requirement of a "case or controversy" to deny access to
the courts. 63
61. Professors Cappelletti and Perillo interpret article 100 of the Code of Civil
Procedure to mean that a potential plaintiff must have a "need for judicial protection." They
state, "[r]oughly speaking, a 'need for judicial protection' corresponds to the American
concept of American constitutional law that there must be a 'case or controversy' before the
judicial arm may be invoked." CAPPELLETWI, CIVIL PROCEDURE supra note 47, at 147 n.16.
While interesse ad agire is not included in the text of the 1947 Constitution, the
concept of interessead agire may have some sort of quasi-constitutional status because it is
thoroughly imbedded in the underlying civil law system.
62. Some scholars have concluded that the requirement of an interesse ad agire only
applies in actions for mero accertamento,which Cappelletti and Perillo say is analogous to
the American action for a declaratory judgment. CAPPELLETMI, CIVIL PROCEDURE, supra
note 47. On the other hand, Professor Denti says that interesse ad agire is essentially
fictitious, and Attardi reports there is one group of scholars who argue that Article 100 does
not actually apply in any cases and that as a matter of theory it is either "superfluous or
plainly erroneous." DENTI, supra note 47, at 117; Attardi, Interesse ad agire, NOVIssIMo
DIGESTO ITALiANo VIII 840. See MANDRIou, CORSO, supra note 47, at 50-52 for a
discussion of the cases and doctrine of interesse ad agire, in which he suggests the concept
is superfluous (or perhaps redundant, in that it inheres in virtually any legal claim) and
indicates courts have treated it as referring simply to "a result that can only be obtained
through the actions of the courts ('l'attivitd giurisdizionale')."Id. at 51 n.2.
63. The requirement of interessead agire seems to have been applied only to preclude
consideration of claims that are entirely theoretical, essentially undisputed or plainly not ripe
(certainly the use of the term "current" (attuale) suggests there is an element of ripeness
here). See, e.g., Judgment of Aug. 11, 1983, n.5352, Cass., Foro It. 1 3038 (". . . it is an
established principle that interesse ad agire depends on the concrete utility that the exercise
of judicial power can have for the party involved; as a result, in actions for mero
accertamento,interessead agire does not exist if the only thing requested is the elimination
of prejudice that is only potential and not concrete and current") C". . . d principio
consolidato in giurisprudenzache l'interessead agire in giudizio si determina in relazione
alla concreta utilitd che dall'esercizio della giurisdizionepu6 derivare alla parte; con la
conseguenza che, nelle azioni di mero accertamento, tale interesse non sussiste qualora
venga richiestal'eliminazionedi una situazione di incertezza in un rapportogiuridico dalla
quale derive un pregiudizio meramente potenziale e non concreto o attuale"). See also
Judgment of May 14, 1983, n.3338, Cass., Foro It. 1 3040 and Judgment of Mar. 31, 1983,
COLUMBIA JOURMAL OF TRANSNATIONAL LAW [33:259
The same cannot be said about legittimazione ad agire,the other

requirement for an azione.64 Legittimazione ad agire may be
translated as the power or authority to act in a legal proceeding, or
the power to seek from a court a decision on the merits of a legal
claim." Fulfilling the legittimazione ad agire requirement is
critical to a party's power to institute a lawsuit, and the courts have
frequently denied access because the requirement was not met.6' To
establish legittimazione ad agire, the plaintiff must allege in the
initial pleadings that the defendant violated either a "subjective right"
(diritto soggettivo) if the case is brought in the "ordinary" courts or
a "legitimate interest" (interesse legittimo) if the case is brought in
the administrative courts.67
In deciding if a putative plaintiff has offered adequate allegations
and established the right to sue, the Italian doctrine and case law
focus on the intent of the code provision or the statute involved.
Pret. Torino, Foro It. I 3040 and accompanying notes (stating that in an action for mero
accertamento,interessead agireexists only if the uncertainty over a legal relationship causes
a "real and concrete harm to the legal rights of the plaintiff'- 5 "un danno effettivo ed attuale
alla sfera giuridicadell'atore").
64. Like interesse ad agire, legittimazione ad agire is not constitutional. However,
unlike interessead agire,the legittimazione ad agirerequirement is not specifically provided
for in the Code of Civil Procedure either. See Vigoriti, supra note 52, at 75-93, Denti, supra
note 47 at 117, and Attardi, supra note 62 at 722, for suggested sources in the Code of the
legittimazione ad agire requirement. See also CAPPELLETI, CIVIL PROCEDURE, supra note
47, at 124 n.65 for a discussion of the link between legittimazione ad agire and Article 81
of the Code of Civil Procedure, which provides that "outside of the cases expressly provided
by law," no one can bring in her own name an action that concerns a right of someone else
(Fuoridei casi espressamenteprevisti dalla legge, nessuno pu6 far valere nel processo in
nome proprio un diritto altrui). C.P.C. art. 81. Most commentators see Article 81 as
integrally related to the concept of legitimazione ad agire.
65. The term refers not simply to the power to initiate a proceeding (legittimazione
attiva), but also to the power or obligation to act as a defendant and to oppose a claim
(legittimazionepassiva).
66. The interpretation of the legittimazione ad agire requirement by the courts is only
briefly summarized here. The scholarship on the practical and theoretical importance of
legittimazione ad agire is voluminous. See MANDRIOLI, CORSO, supra note 47, at §13 n.3
and articles cited therein.
67. The distinction between the concepts of dirittosoggettivo and interesselegittimo is
explained in CAPPELLETrI, CIVIL PROCEDURE, supra note 47, at 112. See also CAPPELLETrI,
ITALIAN LEGAL SYSTEM, supra note 47, at 81. He states that "a right (diritto soggettivo) is
defined as an interest directly guaranteed by law to an individual, whereas a legitimate
interest (interesse legittimo) is defined as 'an individual interest closely connected with a
public interest and protected by law only through the legal protection of the latter."' (quoting
ZANOBIN, CORSO DI DIIro AMMImSTRATIvo 185, 187). As a practical matter, "rights"
are enforced in "ordinary" courts while" "legitimate interests" are enforced in separate
administrative courts. The respective roles of the ordinary and administrative courts are
described above at page 275.
Before allowing the case to move to the proof-taking stage, the court
must identify the underlying substantive right involved and determine
if the statute was intended to protect the rights claimed and/or to
prohibit the challenged conduct. Italian doctrine governing access is
substantially less concerned than American law with finding an
"injury in fact" or with examining at the initial stage of the case the
factual details of the link between the defendant's action and the
alleged right (the American notion of causation). Nor does Italian
doctrine seem as concerned with establishing ab initio the precise link
between the potential remedy and the right alleged to have been
violated (the American notion of redressability)." Questions of
injury, causation, and redressability seem to be questions to be
resolved in the course of the trial itself, rather than through a
preliminary inquiry.6 9
As a result of this focus on legislative intent, rather than on the
construction of extrinsic facts, it might be argued that Italian law is
more advanced than American law. Professor Fletcher says the focus
of the American law of standing should shift away from injury,
causality, and redressability, and that "the merits of a standing claim
must always depend, in the end, on the meaning of the statute or
constitutional clause upon which the plaintiff relies."7 One could
conclude that the Italian doctrine already does what Professor Fletcher
recommends for the American system. The Italian system also
68. As explained above, apparently there has to be some showing of "concrete utility"
between the right alleged and the remedy sought in order to meet the requirements of
interesse ad agire. However, this inquiry does not appear to be anywhere near as detailed
as the inquiry into redressability mandated by cases such as Lujan.
69. While the Italian doctrine on access does not focus on "injury in fact" or
"redressability," Italian procedure does seem to mirror some other aspects of the American
rules on standing. From one angle, the Italian doctrine on access looks like the American
inquiry into whether the plaintiff is within the "zone of interest." In Italy, even if a person
has some sort of reasonably concrete injury, she cannot sue unless she also has a right (in
the sense of an "entitlement!'-titolaritd)that was intended to be conferred on her by the
code, the legislature, or the constitution.
The Italian focus on what we would consider to be legislative intent also looks like
the kind of judicial inquiry required under cases like Cort v. Ash, 422 U.S. 66 (1975) in
determining whether a plaintiff has a private right of action. While the entire private right
of action question might look very peculiar to an Italian court, the close analysis of the
legislative intent in the American courts is similar to the Italian inquiry into the existence of
legittimazione ad agire, though the Italian court's analysis of the meaning of a particular
provision is expressed in terms of a search for the underlying doctrine rather than the specific
intent of a legislative body. The question, however, is very much the same: did a legislative
body intend to permit the putative plaintiff to sue to enforce the particular right asserted?
70. Fletcher, supra note 27, at 239. Peter Cane describes a similar debate in England
in his article on the House of Lords decision in the Fleet Street Casuals case. Cane, supra
note 13.
COLUMBIA JOURNVAL OF TRANSNATIONAL LAW [33:259
appears to recognize a clearer link between standing and the merits

of the underlying claim or cause of action; i.e. it may be more willing
to recognize explicitly that preliminary inquiries into whether a
putative plaintiff can sue are inevitably related to the merits, and that
a person's right to initiate litigation depends on an analysis of the
substantive claim being asserted.71
The Italian doctrine therefore avoids the detailed preliminary
factual inquiries that cases like Lujan require in American courts. As
a practical matter, however, this apparent analytical streamlining has
not resulted in easy access to the courts. As explained below, groups
representing "diffuse interests" have struggled to gain the right to sue,
with decidedly mixed results.
B. Standing Doctrine as Applied in the Italian Courts

In determining whether a plaintiff is alleging the existence of a
protected diritto soggettivo or interesse legittimo and the necessary
possession (titolarita) to such a right or interest, the Italian courts
have generally looked for claims rooted in traditional notions of
property and individual ownership.72 Over the last twenty years, the
civil law tradition of individual rights as the basis for litigation has
created problems where the rights alleged have been collective or
diffuse in nature (interessidiffusi) and where the courts have not been
comfortable finding that the right claimed has an individual "own-
er."73 Not surprisingly, most of these problems have arisen in
71. On the other hand, one could argue the Italian doctrine is not advanced at all, but
rather is retrograde. The Italian doctrine, it could be said, is at the pre-ADAPSO stage,
looking for traditional rights (encompassing both diritto soggettivo and interesse legittimo)
to which the plaintiff has titolaritd,along the lines of Tennessee Electric Power Co. v. TVA,
306 U.S. 118 (1939) (or, alternatively, along the lines suggested by Justice Scalia in Lujan.)
72. Even though the rights found to deserve judicial protection may be new ones (such
as the right to a healthy environment), the Italian doctrine seeks to fit them into the
traditional/historical categories of diritto soggettivo or interesse legittimo. There has been
some debate over whether there should be some sort of tertium genus, since there are
problems for some scholars in fitting these new sorts of superindividual rights into the two
more traditional categories.
73. Many books and articles have been written on the Italian courts' struggles with
interessi diffiisi. Most recently, Professor Consolo wrote an extensive footnote on the issue.
Cappalli and Consolo, supra note 47, at 264-66 n.270. See also Trocker, Gli interessidifisi
nell'opera della giurisprudenza, 1987 Riv. Trim. Dir. Proc. Civ. 1112 [hereinafter Trocker,
Rassegna] (summarized in English in Trocker, The Protection of Group Interests Through
the Civil Courts, in ITALIAN YEARBOOK OF CIVIL PROCEDURE 125 (Fazzalari and Sheridan
eds.); VIGORM, supra note 16; CEDAM, LE AZIONI A TUTELA DI INTERESSI COLLE=rVI
(1976). The theoretical issues and many cases are discussed in Ciardetti, Interessi diffusi e
collettivi della dottrina degli anni ottanta (1987) (unpublished thesis, Universiti degli studi
connection with issues involving the natural environment, protection

of public health, and protection of cultural and historical resources.
The ordinary and administrative courts have taken somewhat different
approaches to these environmental problems.
In the ordinary courts, after a long history of resistance to
finding a dirittosoggettivo in claims regarding environmental damage,
the courts have solved part of this problem by finding an individual
right to a healthy environment in article 32 of the Constitution.74
The Court of Cassation (the highest ordinary court) finds a right to a
healthy environment enforceable by individuals by reference to rights
that are shared but can be considered divisible among citizens (diritti
divisibili)' While the Court of Cassation has liberalized access for
individuals with certain types of claims, its approach is not without
problems and limitations. Above all, the right recognized is one to
a healthy environment; a claim based only on recreation or protection
of physical beauty would not be recognized since article 32 guaran-
tees only the fundamental right to "health."76 '
The ordinary courts have therefore not been a particularly

friendly forum for claims based on interessi diffusi and interessi
collettivi. Overall, the administrative courts have been more receptive
to claims involving diffuse interests." However, even the adminis-
di Firenze, FacoltA di giurisprudenza)[hereinafter "Ciardetti thesis"]. I am grateful to

Professor Vincenzo Vigoriti for making this excellent thesis available to me.
74. Article 32 provides "The Republic safeguards health as a fundamental right of the
individual and as a collective interest, and guarantees free health care to indigent persons."
(La Repubblica tutela la salute come fondamentale diritto dell'individuo e interesse della
collettivitd, e garantiscecure gratuite agli indigenti). COST.art. 32.
75. The key cases are Judgment of Mar. 9, 1973, n.1436, Cass., Foro It. I 940, and
Cass. 79/5172, 1980 Giur. It. 859. See Trocker, Rassegna, supra note 73, at 1123-26; DENTI,
supra note 47, at 114-15; Patti, Environmental Protectionin Italy: The Emerging Concept
of a Right to a Healthy Environment, 24 NAT. RESOURCES J. 535 (1984). Cf.Greve, The
Non-Reformation ofAdministrative Law: Standing to Sue and PublicInterest Litigation in
West German Environmental Law, 22 CORNELL INT'L L.J. 197 n. 111 (1989) (regarding
similar arguments based on the German Basic Law).
76. For other issues left open and some procedural problems, see Trocker, Rassegna,
supranote 73, at 1124-25.
77. In theory, the standards for access in both courts are the same. "The necessary
interest (to bring proceedings before the TAR), analogous to that for civil proceedings,
depends on the usefulness of the proceedings to the applicant, that is there must be first, an
effective material or moral injury to the individual interests of the applicant caused by the
administrative measure in question (legittimazionead agire,perhaps), and second, a potential
advantage from the annulment of the measure (interessead agire,perhaps)." CERTOMA, THE
ITALIAN LEGAL SYSTEM 258 (1985). CAPPELLETTI, ITALIAN LEGAL SYSTEM, supra note 47,
at 115 n.1 8, says the provisions of the Code of Civil Procedure "have been characterized as
general norms of procedure because of their applicability to civil and administrative
proceedings.. . ." Glos states that the Code of Civil Procedure governs procedure in the
trative courts have not granted unlimited access to groups and

individuals seeking to challenge governmental actions. 78 In environ-
mental cases, for example, the decisions of the administrative courts
tied the right to sue to a showing of habitation, so that local groups
who were able to show some sort of direct geographical connection
(precisi e consistenti collegamenti) to the environmental interest at
stake are able to sue. The effect of this approach was to penalize
national groups, who may be the most expert and have the greatest
resources,
79
but who do not have the necessary link to the particular
site.
In a sense, the problem in the administrative courts looks like
the problem caused by the insistence on specific injury in Lujan: by
insisting on a plaintiff with a very specific connection to the site
involved, the Italian administrative courts excluded the very groups
most able to bring the case. As a result, environmental organizations
were prevented from using the courts to achieve their policy goals at
the same time that environmental problems became increasingly
acute. As explained below, the legislature responded to these
problems by passing statutes that significantly broadened access to the
courts.
C. Italian Legislation Relating to Standing

Even before passing legislation to address questions of access by
environmental groups, the Italian parliament had exercised its
discretion to confer standing on groups who would otherwise have
administrative courts as well. Glos, Italian Administrative Authorities and Administrative

Procedure, 1978 I.J.L.L. 1, 43 (1978). Levi-Sandri describes the need for revisions in the
existing administrative procedure. L. R. Levi-Sandri, Sul nuovo ordinamentodella giustizia
amministrativa,1983 RIv. TRIM. DiR. PuBBL. 411 (1983).
78. The cases are summarized in Trocker, Rassegna, supra note 73, at 1127-39 and
Ciardetti thesis, supra note 73, at 276.
79. For a criticism of this result, see DENTI, supra note 47, at 121. Professor Denti sees
the 1986 environmental law discussed below on page 291 as a direct outgrowth of the
limitations imposed on national groups by the administrative courts after the seminal case
involving the environmental organization Italia Nostra, Judgment of Mar. 9, 1973, n.253,
Cons. stato, Foro It. III 34; Cass. 78/2207, 1978 Foro italiano 1090. In that case, the
Consiglio di Stato (the highest court in the administrative system) held that Italia Nostra had
the right to challenge the construction of a road through a national park in northern Italy. The
court noted that the organization had been recognized by statute and included in its charter
the goal of protecting the environment The case was later reviewed by the highest court in
the regular court system, the Corte di Cassazione, and it held that ItaliaNostra did not have
the right to bring the suit, because the interest it asserted was not an interesse legittimo (the
type of right that has to be asserted to bring a challenge to governmental action) that could
be differentiated from the public's interest at large.
been excluded from the courts (and who would have been barred
from U.S. courts by the case or controversy requirement). In crafting
these laws, the legislature's focus had principally been on the ability
of the plaintiff to participate effectively; it had not required what
American jurists would call injury in fact. Thus, while the environ-
mental legislation does neatly illustrate the broad authority of the
Italian parliament to direct the courts to entertain certain types of
cases, it is not an isolated example. The legislation and legislative
proposals discussed below illustrate how far the Italian parliament has
gone (or could go) in dispensing with requirements that American
courts have considered essential.
1. The 1967 Building Construction Law

By way of background, it is useful to refer at the outset to the
1967 statute that regulates the granting of building permits by
municipal authorities."0 The legge ponte sull'edilizia 1 permits
anyone (chiunque) to sue to challenge the grant of such a permit.
The 1967 law was, at least on its face, a true "any person" or citizen
suit law, unlike some of the other statutes discussed below that limit
the right to sue to particular groups that are selected because of their
experience, expertise, or some related factor. However, the Consiglio
di Stato read this chiunque language narrowly to permit suits only by
"those living where the illegal construction has taken place ....
Most commentators have criticized the Consiglio di Stato's limitation
of the statute to suits brought by persons who lived in the area of the
80. Some examples of statutes that grant legittimazione to vindicate what are now
known as interessi diffusi or superindividualipredate the adoption of the current Civil Code
and Code of Civil Procedure.
The most notable example of these popular actions (azionipopolari), according to
Italian scholars, was the procedure by which citizens of a commune, province, or region
could sue to challenge electoral irregularities. See Trocker, Rassegna,supra note 73, at 1127;
Ciardetti thesis, supra note 73, at 236, 270-76; DENT, supra, note 47, at 119-20 (describing
the historical antecedents for the azione popolare in corporatist theory and contrasting that
theory with the one underlying the more recent statutes such as the 1986 environmental law
discussed below at 291); CAPPELLETTI, ITALIAN LEGAL SYSTEM, supra note 47, at 114-15.
The popular action was available only where specifically provided for by statute. Professor
Denti suggests that the 1967 building construction law might have been a more current
example of such an azionepopolarestatute had the courts not construed it narrowly. DENTI,
supra, note 47, at 119-20.
81. LEGGE PONTE SuLL'EDTzu.IA, 1967 GAZZ. U i. 4846.
82. Vigoriti, Access to Justice in Italy, in I AccEss TO JUSTICE 649, 681 (1978) (citing
Consiglio di Stato 70/523, 1970 Giur. It. III 193).
construction. 83
The experience with the edilizia law illustrates the Italian courts'
traditional reluctance to consider claims that are not tied to very
specific interests; the Consiglio di Stato was anxious to read into the
"any person" language a limitation to include only those plaintiffs
who could show a real property interest at stake. Professor Trocker
notes that the 1970 Consiglio di Stato decision did broaden access to
some extent (although not as far as he believes the legislature
intended) because it allowed suits by anyone who lived in the
immediate area affected, and not just by those who were adjacent
landowners.8 4 However, the decision was a very narrow reading of
the plain language of the statute. At the same time, the decision also
illustrates the courts' obligation at least to appear to be complying
with the will of the legislature. While the Consiglio di Stato did
construe the statute very narrowly, it did purport to be simply
applying the statute, rather than finding that the legislature had gone
too far in granting the right to sue.
2. The 1970 Workers' Law

The 1970 Workers' Law (statuto dei lavoratori)provides some
especially important insights into the scope of the legislature's
authority to confer jurisdiction on the courts.85 Commentators on
the statuto dei lavoratorihave paid particular attention to article 28,
which grants unions a very broad right to sue to prevent "anti-union
conduct" (condotta anti-sindacale). Article 28, described by one
commentator as "one of the most remarkable provisions in modem
European labour law,"86 provides that whenever an employer
engages in actions intended to impede or limit the freedom and
83. See, e.g., DENT, supra note 47, at 120; Trocker Rassegna, supra note 73, at 1128
(describing the decision as "contrary to the clear letter of the law"); Scoca, La tutela degli
interessi collettivi nel processo amministrativo, in CEDAM, LE AZIONI A TUTELA DI
DNTERESSI COLLErrr : ATn DEL CONVEGNO Di STUDIO 60, 61 (1976) (Consiglio di stato
"engaged in an enormous logical effort ...to demonstrate that the legislator had not meant
..exactly what he had written"). At least one other scholar appears to have defended the
narrow reading of the act. See VIGORITI, supra note 16, at 119.
84. Trocker, Rassegna, supra note 73, at 1128.
85. STATUTO DEi LAVORATORI; Presidential Decree, N. 300, 131 (Jazz. Uff. (May 27,
1970) (Norme sulla tutela della liberia e dignith dei lavoratori, della libertti sindacale e
dell'attivit&sindacale nei luoghi di lavoro sul collocamento). The statuto governs in detail
the rights of unions and the relationship between workers and their employers, and
establishes a mechanism for enforcing those rights in the courts. The origins and purposes
of the statute are described in DENT!, supra note 47, at 45.
86. Wedderburn, The Italian Workers' Statute - Some BritishReflections, 19 INDUS. L.J.
154, 159 (1990).
activity of unions (la liberd e l'attivitd sindacale),including the right

to strike, the local organ of the national union having an interest in
those actions (che vi abbiano interesse) can sue the employer.8 7 The
suit can be brought before the regular courts, which can order the
cessation of the illegal activity and rimozione degli effetti (essentially
make-whole relief)." Professor Vigoriti describes this provision as
follows:
[Article 28] recognizes the interest of the workers of an
enterprise in repressing the anti-union conduct of the
employer and entrusts the task of reacting against such
conduct not to all interested workers, but solely to specified
union organizations. The protection of the collective
interests is here not entrusted either to public organs or to
the co-interested parties, but solely to some of them; i.e.
those who effectively represent the interests of all.89
Under this procedure, the union is not acting either as a
representative of its members or as a procedurally formal "stand-in"
for those members. Rather, the union brings the suit in its own name
to protect its own interests as the owner and manager of the collective
interest (titolare e gestore dell'interesse collettivo).9' Under this
87. Article 28, STATuTo DEi LAVORATORI.

88. The procedure under Article 28 provides for the issuance of what American law
would consider a temporary injunction. See id. at 160-61. See also Trocker, Rassegna,
supra note 73, at 1116-18 (discussing the statute extensively); Ciardetti thesis, supra note 73,
at 390-97).
89. Vigoriti, supra note 82, at 682.
90. Trocker, Rassegna,supra note 73, at 1117. In contrast, the 1977 sex discrimination
law focuses on individual injury. Lex n. 903, 12/9/77. Paritd di trattamento tra uomini e
donne in materiadi lavoro. That statute forbids employment discrimination based on gender,
and permits a woman worker affected by discrimination to sue her employer in the ordinary
courts. The worker can also delegate her cause of action to her union, which can then bring
the case on her behalf. Whether the case is pursued by the worker herself or her union, the
issues remain limited to the particular act of discrimination alleged by the individual
employee, and the remedies are limited to those needed to make whole the particular
employee involved and to enjoin future violations of her rights. The sex discrimination
statute therefore does not seem to confer standing on "strangers." If the cause of action is
essentially delegated, the union acts solely on behalf of the employee and can seek a remedy
that benefits that employee, rather than the union itself or its other members. "Although in
special procedural forms, this is nothing else than an action concerning an individual dispute
between the employer and the woman." Taruffo, Group Action: Class Actions, Public
InterestActions, OrganizationActions and Parens Patriae Jurisdiction,in ITALIAN NATIONAL
REPORTS TO THE XIIITH INTERNATIONAL CONGRESS OF COMPARATIVE LAW 5 (1990).
While the 1977 statute itself does not include any particularly novel procedures for
standing (aside from the procedure for delegating to a union the right to pursue the case), it
has led to some interesting efforts to intervene in enforcement proceedings brought by the
state. In one such case, the Movement for the Liberation of Women (MLD) intervened as
procedure, the union plaintiff need not allege an injury to any

particular union member. 91 Nor does the union have to allege
"organizational" standing in the American sense. In other words, to
bring a case under article 28, the union does not have to show that
the employer's activity has interfered with its fundraising or informa-
tional activities, as was required in Havens and Competitive Enter-
prise Institute.92
Italian unions have brought many cases under this provision. In
one such case,9 for example, the court held that a union could bring
an action under article 28 challenging the employer's firing of two
union leaders where the firing was alleged to be part of broader anti-
union activity involving intimidation and discrimination against
striking employees, organization of an anti-strike movement, and
expulsion of union leaders from the plant. While at least one case
has suggested there can be an overlap between conduct that is anti-
union within the meaning of article 28 and conduct that could form
the basis for the worker's own claim,94 the more widely held view
is that an employee's individual claim cannot be the basis for the
union's claim. Ciardetti suggests that the courts have now become
more stringent, denying the union's right to sue where its claim under
article 28 is actually only the individual employee's claim and not
a civil party in a criminal proceeding. Pretura Rho, Riv. di Giur. Lay. IV, 498 (31 May
1979). (The "civil party" doctrine is discussed below at page 293). The court found that the
MLD was injured by the violation, since it had as one of its institutional goals the prevention
of the same kind of denial of equality at issue in the case.
91. See Ciardetti thesis, supra note 73, at 390 and cases discussed therein.
92. Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982); Competitive Enterprise
Institute, Inc. v. Nat'l Highway Traffic Safety Admin., 901 F.2d 107 (D.C. Cir. 1990). One
might conclude that the Italian Parliament made an implicit decision that condotta antisin-
dacale interferes with particular union activities, such as fundraising or the effective
representation of its members' interests, or that it reflects adversely on the union's prestige
or credibility.
93. Judgment of Mar. 13, 1971, Pret. Milano, Foro It. I 2058. See also Trocker,
Rassegna, supra note 73, at 1117. Professor Trocker uses this case to illustrate that the
victims of anti-union activity need not actually be current members of the suing union.
94. Judgment of Jan. 26, 1979, n. 602, Cass., Foro It. I 946. See Trocker Rassegna,
supra note 73, at 1116 for a discussion of this case. In the case, the firing of a union
organizer was recognized as violating both an individual and a group right. The upshot of
this seems to be that the firing of an employee because of her union organizing activities can
be considered "anti-union" conduct, even though its nominal impact is on one person.
Presumably, a firing motivated by reasons unrelated to the suppression of union activities
would not trigger the union's right to sue under Article 28.
one involving anti-union conduct cognizable under article 28.9'

The results of these cases and the underlying qoctrine therefore
seem strange from an American perspective. The key to our law of
"associational" standing is exactly the kind of very particularized
injury that the Italian law finds will preclude the union from suing;
without such an injury in fact to a particular member, Ljan and
similar cases find the organization has no standing to sue. Therefore,
one can read article 28 to do exactly what American standing law
prohibits: permit the assertion of a claim based on an "abstract social
interest" in ensuring that employers do not engage in conduct that is
inconsistent with the general goals of the union. Like the more recent
statute concerning environmental organizations discussed below, the
Workers' Statute adopts rules on access that seem very much
inconsistent with current American practice.
3. The Italian Red Cross

Prior to the enactment of the 1986 environmental statute
(discussed below), there was at least one other statute that specifically
conferred standing or legittimazione ad agire on a particular national
group. That statute recognized the Italian Red Cross as a "private
public interest organization" (ente privato di interessepubblico) and
essentially made it into a quasi-governmental body.96 The goals of
the organization were those that might be expected: helping the
wounded in time of armed conflicts, assisting prisoners of war and
displaced persons, dealing with natural disasters in and out of Italy,
and "promoting
97
the humanitarian principles of the International Red
Cross."
The most interesting provision of the statute for present purposes
is article 6, which allows the Red Cross to sue to protect the interests
that it represents (agire, anche in giudizio, a difesa degli interessi
rappresentati)and also to become a civil party in criminal proceed-
95. Ciardetti thesis, supranote 73 at 390. See, e.g., Judgment of Jan. 19, 1982, n.1087,
Cass., Foro It. 11610, where the union alleged that the employer's conduct not only injured
the individual employee, but also "disturbed, limited and impeded in a concrete way the
union's supervision (controllo), and injured its peculiar interest in defending the interests of
workers." The court refused to accept the claim, apparently concerned that the union's right
to represent the interests of someone else is circumscribed by traditional doctrine and Article
81 (discussed above at note 64). The case concludes the individual employee's interests can
be a "substratum" and a useful point of reference, but cannot constitute the substance of the
union's claim.
96. Riordinamento della Croce rossa italiana, Presidential Decree 613 (July 31, 1980),
275 Supplemento ordinario alla Gazz. Uff.
97. Id. Article 2, § 2.
ings concerning events that may prejudice its interests.98 Under the
terms of the statute, there is little limit on the kinds of cases that can
be brought; the organization apparently need allege no more than that
it is acting to defend the interests listed in the statute. This statute,
like the 1986 environmental law (and the even more sweeping
proposals discussed below) does not concern itself with concrete
injury, for the organization's general interest in the subject matter of
the litigation (including presumably its interest in the promotion of
"humanitarian principles") suffices. This is a far cry from the
American law of standing - a similar American statute would raise
serious questions of whether the legislature had gone too far in
granting the right to sue. Like the 1970 Workers' Law and the 1986
environmental law discussed in the following section, the Red Cross
statute illustrates the flexibility available to the Italian legislature in
deciding who should have access to the courts.
4. The 1986 Environmental Law

The most interesting Italian statutory provisions concerning
standing are found in the 1986 law that created a new Ministry for
the Environment. 99 The purposes of the new ministry, which
consolidated the functions of several existing ones, were to promote
and to conserve environmental conditions consistent with "the funda-
mental collective interests and the quality of life," to promote the
conservation and utilization of natural resources, and to defend those
resources against pollution."° Article 18 provides for governmental
enforcement of the statute in the regular courts, and that the govern-
ment will seek damages and orders requiring the restoration of
damaged resources) °!
The statute also grants important new powers to environmental
organizations to intervene in certain cases and bring their own
challenges to actions of the government. The key to the environmen-
tal organizations' rights under the statute is article 13, which permits
environmental protection organizations of a national character, present
in at least five regions, to be identified as such by the Minister of the
98. Id. Article 6.

99. Istituzione del ministero dell'ambiente e norme in materia di danno ambientale,
Presidential Decree 349 July 8, 1986, 162 Supplemento ordinario alla Gazz. Uff. See
discussions in DENTI, supra note 47, at 121; and Taruffo, La legitimazione ad agire e le
techniche di tutela nella nuova disciplinadel danno ambientale, 1987 RIv. cRrr. DIR. PRIV.
429.
100. Presidential Decree N. 316, Article 1.
101. Presidential Decree N. 316, Article 18.
Environment.' The minister bases her decision on the programmatic

goals of the organization and a determination of its "internal
democratic character," as well as on the demonstrated "continuity of
its actions" and its rilevanza esterna (literally translated as "external
importance or consequence")." 2 The National Environmental
Council (Consiglio nazionale per l'ambiente), an advisory body
consisting of governmental representatives and fifteen representatives
of groups already certified under article 13, is given ninety days to
comment on any such application. As of March, 1988, seventeen
groups had been certified under this procedure. 0 3 In addition to
reciting the required statutory findings, the decree recognizing these
groups stated that they would be suitable representatives 14 of the
interesse diffuso in the protection of the environment. 0
Article 18 provides for the groups certified by the Minister of
the Environment pursuant to article 13, as well as "any citizen," to
"denounce acts of which they are aware that are damaging to the
environment" (... denunciare i fatti lesivi di beni ambientali dei
quali siano a conoscenza). °5 This section seems unremarkable,
since it merely allows citizens or groups to file complaints with the
appropriate authorities.
More intriguing for present purposes is section 5 of article 18,
which grants two other important sets of rights. First, section 5
102. Presidential Decree N. 316, Article 13. One commentator interprets this to mean that
the organization cannot merely engage in study or scientific analysis, but must actually
engage in some sort of social participation (rilevanza esterna), such as acting as a civil party
in criminal cases. Giovanna Creti, L'art. 13 della legge 8 luglio 1986, n.349 e le
associazioni ambientaliste individuate, 7 RrVISTA GIURIDICA DELL'AMBIENTE 833 (Dec.
1992). An organization might also establish its rilevanza esterna by participating in the
administrative process; i.e. by filing the equivalent of comments in a rulemaking proceeding
under our Administrative Procedure Act.
103. The first sixteen were Amici della terra, Associazione Kronos 1991, Club alpino
italiano,Federnatura(Federazionenazionalepro-natura),Fondo ambientaleitaliano,Gruppi
ricerca ecologica, Italia nostra,Lega ambiente,Lega italianaprotezone uccelli, Mare vivo,
Touring club italiano, World Wildlife Fund, Greenpeace, Agriturist, Lega italianaperi diritti
dell'animale,and Pro-natura (Unione italiana per la protezione della natura). Decree of
May 26, 1987, 126 Gazz. Uff. 8 (June 2, 1987). The group called Ambiente e lavoro was
added in March of 1988. Decree of March 1, 1988, 116 Gazz. Uff. 6 (May 19, 1988).
104. The action of the Ministry of the Environment approving these groups is itself
reviewable in the administrative courts. In Judgment of Dec. 7, 1991, n.1869 Trib. ammin.
reg. Lazio, 7 RIVISTA GIJRIDICA DELL'AMBIENTE 901 (Dec. 1992), two previously certified
groups (the Italian World Wildlife Fund and the Legaper l'ambiente)successfully challenged
the addition of a new group called the Associazione nazionaleper la tutela dell'ambiente
(ANTA). The Consiglio nazionaleper l'ambientehad opposed ANTA's certification under
Article 13 of the 1986 law, but the Ministry had approved it over the council's objections.
105. Presidential Decree N. 316, Article 18, § 4.
allows the same groups certified under article 13 (but not mere
citizens) to intervene in enforcement proceedings initiated by the
government against private parties." 6 Initially, there was some
question about the nature and scope of this right to intervene. Some
courts and commentators apparently interpreted article 18 to allow the
intervening group to act more or less as an amicus curiae (in U.S.
terms), supporting the position of the government but not exercising
control over the proceedings." 7 Other courts appear to have
granted a broader right to intervene, making the environmental group
a type of civil party to the criminal proceedings. 10 8
The issues about the scope of this right to intervene were
resolved with the implementation of the new Code of Criminal
Procedure in October of 1989.1"9 The right to participate as a civil
party was clarified, and the statute also provides that a "non-profit
group or organization, previously recognized by law as having as a
106. Presidential Decree N. 316, Article 18, § 5. "The associations identified pursuant
to article 13 may intervene in cases involving claims of environmental damage and can file
complaints in administrative courts seeking the annulment of illegal actions." (Le associazioni
individuate in base all'articolo13 della present legge possono intervenire nei giudizi per
danno ambientalee ricorrerein sede di giurisdizioneamministrativaper l'annullamento di
atti illegittimi).
107. See, e.g., Judgment of Oct. 22, 1990, n.4099, Trib. ammin. reg. Monza (unreported
decision on file with the author) (LegaAmbiente intervened to support the local government
in a case involving a private company's claim that it had been injured by the denial of its
request to operate a chrome-plating facility), and Judgment of July 11, 1986, n.1016, Trib.
ammin. reg. Toscana, Foro It. 1 478 (Lega Ambiente, World Wildlife Fund, Italia Nostra
and Lega Ambiente Toscana intervened to support local governments' refusal to renew
private company's permission to produce certain chemicals).
108. The civil party procedure, under which a civil claim is consolidated and tried
together with a criminal charge arising out of the same events, is commonly used in Italy.
See CAPPELLETTI, ITALIAN LEGAL SYSTEM, supra note 47, at 113 n.9. Civil parties, often
the families of victims, have become important judicial and political players in criminal
proceedings, especially those involving notorious and politically charged events, such as the
crash of an Italian airliner at Ustica in 1980 and the bombing at the Bologna train station the
same year. Id.
Organizations have also become civil parties. Professor Trocker refers to a case in
which the court granted access as a civil party to a women's organization in a case involving
an allegedly illegal abortion (reato di interruzione volontaria della gravidanza senza le
modalitd prescritte). See Trocker, Rassegna,supra note 73, at 1146. See also Judgment of
May 13, 1979, Pret. Rho, cited in Rapisarda. For an example of an environmental
organization acting as a civil party pursuant to the authority granted in the 1986 environmen-
tal law, see Judgment of Nov. 11, 1988, n.2304, Pret. Atri (unreported decision on file with
the author), in which the Touring Club Italiano (TCI) intervened in a criminal proceeding for
illegal dumping of sewage. TCI was awarded five million lire (about $3800) in damages and
costs.
109. See Massimo Medugno, Note, 6 RiVISTA GIURIDICA DELL'AMBIENTE 684,
(commenting on Judgment of Feb. 26, 1991, n.2603, Cass. For more general information on
the revisions to the Criminal Code, see the articles cited supra, note 47.
1995] STANDING TO LITIGATE IN THE U.S. AND ITALY
goal the protection of the interests injured by the criminal act, can
exercise all the powers of the person injured by the crime."11 This,
provision does not appear to permit groups to act as civil parties and
collect damages, but rather allows them to act as if they were the
parte offesa, or the complainant (who may or may not be a civil
party).,' Italian environmental groups consider this provision to be
extremely important, and have apparently made increasing use of it
to force the government to take more aggressive enforcement
action."' The groups approved under article 13 of the 1986 envi-
ronmental law clearly met the definition in the new Code of Criminal
Procedure (as apparently do some other organizations like the Red
Cross and some women's rights organizations). Those groups
therefore obtained a clear right to intervene and to participate fully at
all stages of the proceedings (in other words, to exercise all the
powers of the person injured by the crime). They also apparently
obtained the right to participate without having to show a particular
injury; it is sufficient for the organization to show that its purpose is
the 1protection
3 of the same interest injured by the alleged criminal
act.
110. C.P.p., art. 91

111. See generally Medugno, supra note 109.
112. Article 92 of the new Criminal Code does require an organization seeking to
intervene under article 91 to obtain the consent of the person injured. C.P.P., art. 92. At least
one lower court has found that such consent is not needed where the intervening organization
itself is claiming to protect a diffuse interest. Judgment of Aug. 13, 1990, Pret. Lecce, Foro
It. II 186 (1991), discussedin VERDELEX, August 1991, the newsletter of the Italian branch
of the World Wildlife Fund (Fondo Mondiale per la Natura). Professor Medugno refers to
another case brought by the Union of Friends of Dogs and Cats (Unione Amici del Cane e
del Gatto) concerning the mistreatment of animals where consent was not necessary because
it would not have been possible to obtain the consent of the injured dog. Medugno, supra
note 109, at 686-87.
113. Regardless of the status awarded environmental organizations, it appears that other
types of organizations and individuals seeking to participate in enforcement proceedings must
follow the civil party route and meet traditional notions of injury. For example, in Judgment
of July 11, 1988, n.1016, Trib. ammin. reg. Toscana, the court refused to permit the
individuals who were the presidents of the national and local chapter of Lega Ambiente to
intervene, even though the organization itself was permitted to do so. The regional tribunal
stated that neither of the individuals had alleged a connection with the claimed negative
effects of the chemical plant, even though the president of the local chapter lived in the town
where the plant operated. In contrast, in Judgment of June 1, 1989, n.1719, Cass., Foro It.
V 510, an organization of dentists was granted civil party status in an unfair competition
action.
Professor Trocker also cites cases which say that a civil party need not show "direct
and immediate harm" (danno diretto ed immediato), and notes that it is sufficient for
purposes of legittimazione to show "the existence of the causal link" (Ia sussistenza del
rapporto di causalitd). He states further the necessary condition is "the existence of an
etiological nexus between the crime and the injury to the legal interest of the person who
The second important facet of article 18, section 5 is even more

relevant to a comparative discussion of the law of standing. Section
5 allows the groups approved under article 13 to initiate their own
actions in the administrative courts to challenge government actions,
such as a regulation or other administrative action that affects the
environment. 14 In these cases, which look very much like chal-
lenges to agency action brought in the U.S. federal courts under the
Administrative Procedure Act, the groups certified under article 13 act
as the plaintiff or petitioner. For example, the Lega Ambiente and the
World Wildlife Fund sued the comune of Monza when the comune
renewed a contract for the operation of an automobile race track
without complying with the proper procedures. The organizations
alleged that the operation of the track, especially during the annual
Formula I race, violated noise regulations.115 The Lega Ambiente
also brought an action against the Prime Minister and the Minister of
the Environment for adopting noise regulations that did not conform
to the requirements of the law. 16
As in the cases where environmental organizations intervene to
support local governments against suits brought by others, the
plaintiff organizations in the two cases cited did not have to allege
any particular injury. To an American lawyer, the complaints in
these cases seem curiously lacking in critical allegations of injury and
causation. 117 Indeed, the environmental organization has the right
("standing" in our terms) to raise claims of alleged illegality that do
not directly affect the organization's interests at all. For example, in
the case cited above challenging the promulgation of inadequate noise
wants to become the civil party" (la sussistenza di un nesso eziologico tra ilfatto che
costituisce reato e ilpregiudizio verificatosinella sfera giuridicadel soggetto che aspiraad
entrarenel processopenale). Trocker, Rassegna, supra note 73, at 1143.
114. Environmental Statute, art. 15. Like the 1986 environmental statute, the Red Cross
statute discussed earlier on pages 290-91 also confers the right to sue on a nationally
recognized organization, although the Red Cross has even broader "standing," since it can
bring cases in the ordinary courts as well as in the administrative ones.
115. Judgment of May 15, 1991, (Lega Ambiente e WWF v. Commune di Monza), Trib.
anmin. reg. Lombardia (ureported decision on file with the author).
116. Judgment of May 6, 1991 (Lega Ambiente v. Presidenza del Consiglio dei
Ministry), Trib. ammin. reg. Lazio (unreported decision on file with the author). See also
Judgment of July 16, 1990, n.728, Cons. stato (Mar. 1991), RIVISTA GMIRmICA DELL'AMBI-
ENM VI 90 (Mar. 1991) (Lega Ambiente allowed to sue to challenge construction of a
highway but an environmental organization not certified pursuant to Article 13 could not);
Judgment of Jan. 17, 1990, n.15, Trib. ammin. reg. Lombardia, 5 RiVISTA GIURIDICA
DELL'AMBIENTE 777 (Dec. 1990), rev'd, Judgment of Feb. 8,1992, n.223 Cons. stato 7
RIVISTA GIURiCA DELL'AMBIENTE 659 (Sept. 1992) (action by Italia Nostra challenging
regulations concerning Roman ruins located in Milan).
117. These complaints, kindly sent by the Lega Ambiente, are on file with the author.
regulations, the Lega Ambiente alleged, interalia,that the regulations

resulted in differing treatment of small and large businesses and
therefore violated the right to what American lawyers would term
equal protection. The Lega Ambiente did not, however, claim that it
actually represented any small businesses. Thus, in this situation, it
is not the plaintiff organization's right to equal treatment that is being
denied, but rather that of entities that are not parties to the case at
118
ali.
By American standards, the 1986 law also leads to some other
anomalous results. For example, the procedure under the statute
seems to exclude those organizations that have the most immediate
interest in a particular governmental action. To be certified by the
Ministry of the Environment, an organization has to be "present" in
at least five regions (none of which apparently has to be the one
where the particular act being challenged occurred). A purely local
group, no matter how directly affected, could therefore not be
recognized under article 13. Nor could a group that is set up in
response to a particular unanticipated local crisis, such as the
threatened pollution of a stream because such a group 9 does not have
the continuity of action needed for certification.1
The article 13 procedure therefore favors national organizations
with longstanding commitments and interests, and disfavors groups
that are local and spontaneous. It is also clear that the statute does
not attach any significance to the particular injury that an action may
118. On the face of the statute, there does not appear to be any requirement that the
environmental harm alleged relates to the particular interest of the organization suing.
However, the Consiglio di Stato has recently interpreted the statute to require as much. In
Judgment of Feb. 8, 1992, supra note 116, a section of the highest administrative court held
that ItaliaNostra could not challenge actions by the city of Milan that affected certain ruins
located in the urban area. In a note on the decision, Stefano Civitarese Matteucci explains
how the Consiglio rejected the TAR's broad reading of what constitutes the ambiente, and
found that ItaliaNostra's "certification" by the Ministry of the Environment did not extend
to the protection of "urban" ruins. Id. at 662.
The arguments accepted by the TAR, which focussed on the environment as a
unitary whole (the spazio esistenziale dell'Uomo), may look like the "nexus" theory of a
shared ecosystem rejected by Justice Scalia in Lujan. The Red Cross statute discussed above
is more explicit. That organization is allowed to sue only in those situations where its
interests, presumably those laid out in the first parts of the statute, are involved.
119. In Judgement of July 16, 1990, supra note 116, the Consiglio di Stato held that the
1986 environmental law was essentially preemptive, and that an organization not certified
under the Article 13 procedure could not sue even if it might have been able to do so prior
to the passage of the law. The note by Vera Parisio to this decision criticizes this result,
which seems inconsistent with the prior decisions orgiurisprudenza.See also Giovanna Creti,
"L'art. 13 della legge 8 luglio 1986, n.349 e le associazioni ambientaliste individuate," supra
note 90; Judgment of Oct. 23, 1991, n.161, Trib. ammin. reg. Trentino-Alto Adige, Bolzano,
7 RIVISTA GIURRIDICA DELL'AMBIENTh 905 (Dec. 1992).
cause. In American terms, the 1986 statute confers standing on

groups that need have no injury in fact and need have no members
who can claim such an injury. There is no requirement that the
organization show the "concrete and demonstrable injury to the
organization's activities-with the consequent drain on the organiza-
tion's resources . . ." referred to in Havens Realty.120 The statute
seems to allow suits based on an action that is no more than "simply
a setback to the organization's abstract social interests., 121 Indeed,
it is not clear that a "setback" need be shown, to the extent that such
a term suggests that some sort of concrete injury must be alleged."2
The law's concern is with the suitability of the organization as a
representative of a more general interest in the protection of the
environment--the standards applied under article 13 focus on the
organization's stability and expertise, the goals stated in the organiza-
tion's charter, and the internal democracy of the organization."z
The 1986 law therefore seems analogous to article 28 of the 1970
Workers' Law, in that the certified group is acting to prevent anti-
environmental conduct that parallels the anti-union conduct in the
120. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).
121. Id.
122. Although perhaps an allegation of at least some sort of "setback" is needed to meet
the interest in acting (interesse ad agire) requirements of Article 100 of the Code of Civil
Procedure.
123. In Judgment of Dec. 7, 1991, supra note 104, the court concluded that ANTA was
not sufficiently democratic to meet the requirements of Article 13 because it was essentially
run by its founding members and the other members did not participate actively in the group.
This emphasis on internal democracy raises some interesting questions. In Health
Research Group v. Kennedy, 82 F.RILD. 21 (D.D.C. 1979), American Legal Found. v. F.C.C.,
808 F.2d 84 (D.C. Cir. 1987), and Hunt v. Washington State Apple Advertising Commission,
432 U.S. 333 (1977), the courts were concerned about the control that the groups' members
had over the decision to initiate litigation. Such a concern makes sense in a regime where
the organization purports to be representing the interests of an injured member, or seeks to
protect the member from an injury or to obtain some remedy. In this case, the court may
reasonably ask if the Knember really wants the organization to sue to vindicate an injury that
is very particularized as to the member. Brilmayer, supra note 26, at 319-20.
In the Italian system, where no particular member's interests need be involved, the
concern for internal democracy must be motivated by other factors. An observation by
Justice Scalia may suggest one answer. He argues that a strict law of standing "restricts
courts to their traditional undemocratic role of protecting individuals and minorities against
impositions of the majority . . ." and that a showing of concrete injury is what entitles a
plaintiff"... to some special protection from the democratic manner in which we ordinarily
run our social-contractual affairs." Scalia, The Doctrine ofStandingas an EssentialElement
of the Separation of Powers, 17 SUFFOLK U. L. RPV. 881, 894-95 (1983). Does the
insistence on internal democracy of organizational plaintiffs suggest that the Italian system
from which protection is sought is not democratic? Does it suggest that internal democracy
is a substitute for concrete injury, and that no concrete injury is needed where there is a sort
of countervailing mini-democracy in the organization of the plaintiff?
earlier statute.124 In both cases, the legislature has conferred a

general right to sue-it has, in Justice Scalia's terms, converted "the
public interest in proper administration of the laws" into an individual
right and permitted "a subclass of citizens125who suffer no distinct
concrete harm" to sue to enforce that right.
5. Proposed New Legislation

a. The "disegno Spadolini"
The scope of the Italian legislature's authority to grant standing
to plaintiffs who are not injured in fact is further illustrated by some
of the statutes that have been proposed but not adopted. For
example, an even more comprehensive approach to the problems of
standing of groups seeking to represent so-called interessi diffusi
appears in legislation proposed in 1981.126 The disegno Spadolini
(named after its sponsor) recognized that certain organizations,
notably Italia Nostra and the Italian Red Cross, had already been
declared to be "private public interest organizations," and proposed
to extend this status to other groups in a more methodical fash-
ion. 7 The procedures for approval are similar, although the
criteria to be applied seem more stringent. 128 Under the disegno
Spadolini, an organization could petition the Prime Minister (and the
minister responsible for the particular subject matter involved) for
recognition. The Prime Minister would have been required to consult
the Consiglio di Stato before approving the petition. Once approved,
124. Professor Consolo believes that the union's interest is not identical to that of the
environmental organization. He states that the union represents "collective interests"
(interessi collettivi) while the environmental organization represents "diffuse interests"
(interessidiffusi). Cappalli and Consolo, supra note 47, at 264-66. From the perspective of
the American law of standing, however, the two concepts seem equally problematic.
125. 112 S.Ct. at 2145.
126. Disegno legge 2800 (camera 19 agosto 1981), reprinted in "Atti del convegno
nazionale promosso della sezione di Bologna di Italia Nostra, 5 dic. 1981", in STRUMENTI
PER LA TUTELA DEGLI INTERESSI DIFFUSI DELLA COLLETTIVITAk (Maggioli and Rimini eds.
1982).
127. The disegno Spadoliniis discussed in Rapisarda, Bilancio eprospettive della tutela
degli interessi diffusi negli anno ottanta (note in margine ad un recente convegno), 1982
Foro It. 85; Varano, Recent Trends in the Organization ofLegal Services in Italy, 96 STUDI
SENESi 271 (1984); and Vincenzo Vigoriti, Legittimazione ad agireed intervento nelle azioni
collettive: proposteper una discussione, 32 GIusT. Civ. II 421 (1982).
128. Article 2 of the disegno Spadolini requires the charter of each group to include as
a goal the protection of the interests of identified categories, groups, or collections of
individuals (la categoria, il gruppo o la collettiviti). The organization also had to have
enough members to ensure the effective pursuit of its goals, had to have pursued those goals
for at least two years, and had to have an "open and democratic" structure. Disegno
Spandolini, art. 2.
COLUMBIA JOURNAL OF TRANSNATIONAL LA W [33:259
an organization would be required to file periodic reports covering its

activities and its financial affairs. Article 5 essentially grants
legittimazione ad agire to these organizations, but does so in a
manner that is closer to the Red Cross statute than to the 1986
environmental law: like the Red Cross, an organization approved
under the disegno Spadoliniwould have had complete access to both
ordinary and administrative courts to pursue the interests which it had
been certified to represent, and would have been granted the right to
intervene in criminal proceedings involving those interests.
Once an organization had been anointed as a private public
interest organization, therefore, this legislative proposal virtually
would have granted it carte blanche to sue to protect the interests set
out in its charter.129 As in the Red Cross statute, there would have
been no further requirement for the organization to show what U.S.
law would consider an injury in fact. The purpose of the statute, as
indicated in the preamble, was to overcome the barriers that had been
erected by the legal doctrine to the representation of diffuse and
collective interests. Since the statute was not passed (although it was
the subject of substantial scholarly discussion), one can only speculate
as to how it would have worked in practice. If it had been enacted
and used as its proponents (and its language) suggest, it would have
permitted litigation in which the plaintiff was (again, in American
terms) a stranger. To many American courts, the resulting onslaught
of cases brought by a series of environmental, consumer, or civil
rights organizations with no particular factual connection to the 13
particular violation alleged would have been a judicial nightmare. 1
129. Article 5 does provide that if an organization acts in litigation with bad faith or
gross negligence the court could impose sanctions equal to double the cost of the litigation.
Disegno Spandolini, art. 5. Such a penalty would have been in addition to penalties under
Article 96 of the Code of Civil Procedure, which provides for the award of costs and
damages in such situations. C.P.C. art. 96. Article 8 provides for the termination of the
group's status under the statute if it "persistently" fails to meet its obligations to file reports
or if it is sanctioned by a court under Article 5 twice in any three year period. Disegno
Spandolini, art. 8.
130. Another proposal for a comprehensive grant of legittimazione ad agire to public
interest groups was offered by one of the most prominent Italian scholars, Professor
Vincenzo Vigoriti. See Vigoriti, supra note 127, at 421. Under his proposal, the
organization would not have needed to show any injury to itself (unless, as in the workers'
statute, there is lurking here some unstated notion of organizational standing based on the
idea that the failure to enforce a law injures the prestige of any group dedicated to its
enforcement).
Professor Vigoriti's proposal, unlike the disegno Spadolinior the 1986 environmen-
tal law, did not contemplate legislative or executive approval of plaintiffs. Rather, his
proposal looked more like the process by which an American judge evaluates the ability of
a potential named plaintiff to represent a class under FED. R. Civ. P. 23.
b. The Sexual Violence Statute

The broad powers of the Italian parliament to confer standing are
further illustrated by an important piece of legislation dealing with
sexual violence (including intra-family violence) that has been
extensively debated for years and is still in the proposal stage.13
The statute is noteworthy principally because one of its provisions
would grant women's groups the explicit right to intervene in
criminal proceedings involving sexual violence if the groups have
among their goals
13 2
the protection of the interests of persons injured by
sexual crimes.
By American standards, these Italian statutes grant standing to
"strangers" who have no real stake in the case. They create a right
to sue which is divorced from any concrete injury or the possession
of any particular substantive right. In other words, to have standing
under these statutes, it is not necessary that any legal right of the
organization be affected beyond its institutional commitment to a
particular policy goal or its philosophical interest in the issue. While
the U.S. Congress would be prevented from enacting such statutes
because of "case or controversy" problems,133 there appears to be
131. "Propostadi legge - Norme contro la violenza sessuale," Camera dei deputati N.
2957-3. Francesco Romano, La violenza sessuale: luci ed ombre nella normativa vigente
e nelle prospettive di riforma, 23 GIURISPRUDENZA DI MERITO 436 (Mar.-Apr. 1991)
discusses the tormented history of this legislative proposal over the last 14 years and the
reasons for the political controversy the proposal has created. As of November 1994, this
statute had not been enacted.
132. Romano describes this provision, Article 10, as allowing "participation, with the
consent of the offended party (parte offesa), in the trial by an organization that has as one
of its goals the protection of the interests injured by sexual crimes." Id. at 451. One of the
practical obstacles to the enactment of this statute has been the need to integrate this
provision into the new criminal code adopted in late 1989. Under the new procedure, a
potential "civil party" has less time to intervene. Thus, intervention may as a practical matter
be more difficult. It is not clear whether this has been a problem for organizations acting
under the authority of the 1986 environmental law.
A similar statute is discussed in Tamar Pitch, The Political Use ofLaws: the Italian
Women's Movement and the Rape Campaign, 7 ALSA FORuM 139 (1983). That proposal
seems even more far reaching in terms of standing, since it would allow groups to initiate
such cases, not just intervene in them.
133. Professor Logan posits a statute "allowing 'any person who devotes substantial
resources to monitoring church-state relations' standing to sue to enjoin violations of the
establishment clause of the first amendment." Logan, supra note 60, at 61 n.99. He
concludes that since the Court held in Valley Forge Christian College v. Americans United
for Separation of Church and State, 454 U.S. 464, 475 (1982) that complaints about
violations of the establishment clause are simply generalized grievances and do not constitute
an injury in fact, such a statute would not be a valid grant of standing. The members of the
Lujan Court would surely agree.
no such restriction on the power of the Italian legislature. 134 As

noted above, legislative action in Italy preempts any problem of
establishing the existence of interesse ad agire or legittimazione ad
agire, and it would seem that the Italian legislature can formulate
3
standards governing access to the courts however it wishes.1 1
IV. IMPLICATIONS OF THE ITALIAN EXPERIENCE
What implications does this description of the Italian system for

an analysis of American rules on standing? The Italian Parliament
has adopted legislation that sets aside restrictions on the right to sue
which grew out of Italian doctrine and court decisions, and has not
insisted on a showing of what we would consider an injury in fact.
If American courts did something similar by abandoning the injury in
fact requirement and adopting a broader definition of case or
controversy-would we still be able to achieve the principal goals
underlying our current system? Is there something peculiar to the
Italian legal system, or to the culture in which it operates, that
permits that system to dispense with injury in fact? Do the peculiari-
ties of the Italian system suggest that drawing parallels between the
two systems is dangerous and misleading? Or does the Italian
134. See Borghesi, Azionepopolare,interessidiffusi e diritto all'informazione,POL. DiR.

1985, at 259, 281, quoted in Ciardetti, supra note 73, at 240 (noting that the legislature "has
complete freedom to structure legittimazione ad agire as it deems appropriate" ('... ha
piena libertd di strutturarela legittimazione come ritiene pi opportuno")). Cf.VIGourrI,
supra note 16, at 66 n.2, (discussing the belief of Mandrioli and others that further analysis
"... should proceed from the principle that the problem of legittimazione ad agire is above
all a question of legislative political choices, and then a technical problem" ("dovrebbe
muovere dalla consapevolezza che il problema della legittimazionead agired prima di tutto
una questione di scelte dipolitica legislativa e, poi, un problema tecnico")).
135. On this point the issue is not entirely clear, in part because of the continued
presence of Article 24 of the constitution. Article 24 grants "each person" the right only to
"sue to protect his own rights and legitimate interests" ("agire in giudizio per la tutela dei
propri diritti e interessi legittimC"). COST, art. 24. That may suggest, as one can infer from
MANDRIOLI, CORSO supra,note 47, at 53, that there are limits to what the legislature can do
in conferring legittimazione ad agire. Thus, the legislature cannot confer on one person or
entity the right to sue to protect the interests of someone else. However, an opposing
interpretation of Article 24 would not focus so narrowly on the word propri (meaning his or
her "own"). That is to say, while the constitution prevents the legislature from denying
someone the opportunity to assert their own rights, it does not prevent the legislature from
allowing someone else to assert those rights as well. See Cappalli and Consolo, supra note
47, at 263 (Article 24 may permit a form of class action that would permit a plaintiff to sue
on behalf of others). In any event, it can also be argued that statutes like the 1986
environmental law do not violate Article 24 because the rights asserted by the organizations
do not belong to anyone else anyway; they are interessidiffisi and no individual can claim
them as their "own."
1995] STANDING TO LITIGATE IN T=E US. AND ITALY
experience support the conclusion of many American scholars that we

could meet the goals of our standing requirement with a much
simpler set of rules?
While the Italian rules on access (governed by the doctrines of
interesse ad agire and legittimazione ad agire and implemented
through the legislation discussed above) do not look exactly like their
U.S. counterparts, they may nevertheless serve similar ends. For
example, the traditional inquiry by Italian courts and scholars into a
person's capacity to act as plaintiff centers on whether that person has
asserted a legal right or a legally protected interest, a test abandoned
by U.S. courts in favor of the injury in fact test.136 However, both
tests are intended (explicitly or implicitly) to serve the same goals:
preserving some form of separation of powers and restricting the role
of the courts. The Italian judicial system also shares with American
courts the goal of ensuring that the parties present the issues in an
adversarial manner that fully informs the court's decisionmaking.
Permitting suits to be brought by plaintiffs who have no injury in fact
apparently does not interfere with either of these goals in Italy.
Despite a history of hostility to judicial power, the Parliament has
concluded that creating the right to litigate abstract social interests
does not improperly expand the power of the courts. It has also
concluded that Italian judges can fully understand the issues before
them despite the absence of what Americans call concreteness. 37
A. The Goals of the Standing Requirement: Separation of Powers

The most frequently stated reason for the U.S. rules on standing
is that they maintain the separation of powers by restricting the
actions of the judiciary. 38 As explained below, similar notions
136. For a description of this transformation of the American law of standing, see David
A. Logan, Standing to Sue: A ProposedSeparationof PowersAnalysis, 1984 Wisc. L. REV.
37 (1984); Sunstein, supra note 27.
137. I have limited this discussion to the two principal rationales for our current rules
on standing. Cases and articles have put forth other reasons for those rules, such as the
protection of the autonomy of persons who are not parties to the litigation, the rationing of
scarce judicial resources, and the avoidance of political questions thought to be unsuitable
for judicial resolution. The Italian system probably shares most of those goals as well, and
it would be useful to explore these similarities between the two systems in another article.
138. For a review of the scholarship and case law on this point, see Jonathan Poisner,
Environmental Values and JudicialReview After Lujan: Two Critiques of the Separation of
Powers Theory ofStanding, 18 ECOLOGY L.Q. 335 (1991). Poisner identifies Justice Scalia
as the most obvious proponent of this rationale. In Lujan, Justice Scalia notes how the
doctrines of standing also restrict the powers of Congress, by preventing that branch of
government from transferring executive power "to take Care the Laws be faithfully executed"
about limiting judicial power run through the Italian system as well,
although the two systems are not identical. In the United States, the
separation of powers doctrine depends on the web of "checks and
balances," by which each branch of government has some control
over the actions of the others. The doctrine of standing, designed to
restrict the power of the judiciary, is one arm of that trilateral
system.139 In contrast, in Italy separation of powers theory depends
less on the branches of government controlling each other, and more
on a rigid allocation of powers among those branches; in short, there
is less of a sense of "checks and balances" than in the United
States.14
While in theory each of the branches of the Italian government
is separate from the others, to the American observer the system
seems to be designed principally to restrict the power of the judiciary;
there appears to be less focus on restricting legislative or executive
power." ' This desire to limit the authority of judges derives in part
to the courts. 112 S.Ct. at 2145. In his dissent, Justice Blackmun characterizes Scalia's
view of separation of powers as "anachronistically formal." 112 S.Ct. at 2158.
139. Parallel doctrines restrict the powers of the legislature, see INS v. Chadha, 462 U.S.
919 (1983), as well as those of the executive, see United States v. Nixon, 418 U.S. 683
(1974).
140. Professor Cappelletti stresses what he considers the "profound difference" between
the French Revolutionary ideal of a rigid separation of powers and the American doctrine
of checks and balances, although he also notes that rigid separation is being replaced by a
system of "reciprocal controls." Mauro Cappelletti, The Law-Making Power of the Judge
and its Limits: A ComparativeAnalysis, 8 MONASH U. L. REv. 15, 30-35 (1981). See also
MERRYMAN, supra note 51, at 15 (discussing the fundamental differences between the two
systems and the special emphasis on "isolating the judiciary"); Alessandro Pizzorusso, Italian
and American Models ofthe Judiciaryand of JudicialReview ofLegislation: A Comparison
ofRecent Tendencies, 38 AM. J. COM. L. 373 (1990). ,
141. Professor Greve makes the point that in the German system, the executive is a
creature of the legislature and therefore the legislature (perhaps unlike the U.S. Congress)
has no interest in expanding control over the executive by another branch of government
such as the courts. Michael S. Greve, The Non-Reformation ofAdministrativeLaw: Standing
to Sue andPublicInterest Litigationin West German EnvironmentalLaw, 22 CORNELL INT'L
L.J. 197, 230-31 (1989).
A similar observation seems appropriate with regard to the Italian system. One
would assume that the Italian parliament does not want to grant the courts extensive power
to control executive action since, as in Germany, the executive, consisting of both the prime
minister (President of the Council of Ministers) and the head of state (the President of the
Republic) is a creature of the legislative branch.
See also Sunstein, supra note 27, at 1443 (referring to the rejection in the 1960s and
1970s of "the New Deal belief in an inevitable disjunction between the realm of law and the
realm of administrative government"). Is the Italian doctrine intended to preserve this
disjunction? Does Justice Scalia want to revive it in the American courts? "[C]ourts [may]
participate in law enforcement entrusted to administrative bodies only to the extent necessary
to protect justiciable individual rights against administrative action fairly beyond the granted
powers ...." Stark v. Wickard, 321 U.S. 288, 309-10 (1944), cited in 112 S.Ct. at 2145.
from the suspicion of judicial power that animates civil law systems
and that motivated the initial development of the idea of separation
of powers. 42 As in many civil law countries, the concern about
lawmaking by judges in Italy runs deep, 143 and the importance of
protecting society from "the undemocratic power of the courts" has
been expressed in Italy in terms that reflect the arguments of
American scholars like Justice Scalia. "[J]udicial lawmaking in a
democratic society" can only be justified by pointing to the protective
"structural characteristics of the judicial process"--the insistence on
the presence of a "case or controversy" and actual parties, and the
prohibition of "judgments in re sua."1
The Italian statutes discussed above seem inconsistent with a desire to limit judicial
intervention into the processes of government. Therefore, Justice Scalia would surely find
them troubling.
142. MERRYMAN, supra note 51, at 16 (discussing response to abuses by the "judicial
aristocracy"). The Italian system shares the usual civil law antagonism towards judicial power
that grew out of the French revolutionary experience. See PizzoRusso, supra note 47, at 31;
MERRYMAN, supra note 51, at 28-29.
143. The Corte di Cassazione's seminal decision holding that Italia Nostra di not have
"leggitimazione ad agire"/standing to challenge the construction of a road in a park explicitly
relied on concerns related to the separation of powers. Allowing cases to be brought by
someone who did not have a traditional "interesse leggitimo" would require the courts "to
make discretionary choices that normally lie within the duties of the 'public adminstration'
or the political power.. ." and would risk "contamination among areas of power, as well
as the paralysis, or the danger of paralysis of adminstrative activity.. ." ("operare una scelta
discrezionale che spetta normalmente alia pubblica amminstrazione o al potere politico...
la contaminazione fra le aree di potere, nonch6 a la paralisi, o il pericolo di paralisi
dell'attivitA amminstrativa.... ." Judgment of May 8, 1978, Cass., n. 2207, Foro It. 11090,
at 1094-95. See VIGORrT, supra note 16, at 71. Professor Greve points out that this concern
has been exacerbated in Germany by the experience with the courts' actions in litigation
about the construction of nuclear power plants. He says that "the judges drew severe political
and scholarly criticism for the role they played in environmental protection, and in particular
for their activist approach to nuclear power cases." Greve, supra note 141, at 224.
144. Trocker, JudicialResponsibility in Italy, in ITALLAN NATIONAL REPORTS TO THE
XITH INTERNATIONAL CONGRESS OF COMPARATIVE LAW (CARACAS 1982) 221-22 (1982).
The restricted role which the courts play in constitutional adjudication, in contrast to United
States practice, also reflects the Italian limitation on the power of the courts. Some
American scholars have argued that the role of the judiciary in the United States may be "to
enforce the Constitution, and not simply to resolve disputes among private parties..."
Bandes, supra note 27, at 281, 284. Cf Eskridge, Metaprocedure, 98 YALE L.J. 945, 998
(1989). There is considerable debate as to whether this is properly the role of the courts in
the Italian system, in part because some provisions of the constitution are seen only as
directions to the legislature (normeprogrammatiche)rather than as rights enforceable through
the courts (norme precettive). For example, Article 36 provides: "[e]very worker has a right
to compensation proportionate to the quality and quantity of his work and in any event
sufficient to assure to him and his family a free and dignified existence." COST, art. 36.
While courts obviously apply and interpret the Constitution and may find new rights
in it (see, e.g., discussion, supra page 284, on the right to a healthy environment found in
Article 32), it is significant that the ultimate authority to determine whether a statute violates
the constitution rests with a body (the Corte Costituzionale) that, to the American observer,
It is therefore tempting to suggest that Italy has a strict system

of separation of powers, that the courts do no more than passively
decide the cases and issues presented by the parties, and that the
courts are restricted to being the bouche de la loi and simply applying
the language of the various codes. For purposes of this paper, such
a finding would be helpful since it would lay a tidy foundation for
the key question I wish to examine here: how can a system based on
such a strict theory of separation of powers allow suits to be brought
by litigants who, in American terms, have suffered no injury in fact?
This question is complicated, however, by the fact that the Italian
system is not as simple in practice as it appears in theory. Italian
judges do exercise considerable independence in their decisionmaking
in particular cases and are apparently subject to few controls by other
branches of government. They have become increasingly less
conservative in interpreting the codes, and they have significant
power to affect other branches of government and society in general.
The struggle since the Second World War to ensure the
independence of the judiciary, and of individual judges, has been
extensively documented.14 Professor Guarnieri concluded in 1994
that "Italian magistrates currently enjoy higher guarantees of both
internal and external independence than those found in any other
democratic country.' ' 146 As noted below, recent efforts to restrict
that independence by other branches of government (such as the
President of the Council of Ministers) have been met with significant
popular opposition.
It is also too simple to suggest that judges are entirely restricted
looks decidedly political. The Constitutional Court was created by the 1948 constitution, but
it was not actually set up until 1956. Five members of the fifteen person Court are chosen
by the President of the Republic, five in a joint session of Parliament, and five by the Court
of Cassation, the Council of State and the Court of Accounts. The members of the Court
serve nine-year terms. Reservation of constitutional issues for this type of centralized court
is fairly common in civil law countries. CAPPELLETTI AND COHEN, COMPARATIVE COMMON
LAW 76-77 (1987).
145. Modona, La magistraturae ilfascismo, in FASCISMO E SOCiETk ITALiANA (Quazza
ed. 1973) places this struggle in historical perspective. Since World War II, the indepen-
dence of the judiciary has been increased through separation from the Ministry of Justice,
expansion of the role of the magistrates' own governing body (the Consiglio Superioredella
magistratura),and the institution of relatively new procedures for the selection of judges by
competition and a seniority-based promotion system. Professor Modona argues that this
struggle to ensure an independent judiciary was not a reaction to a Fascist model of the role
of the judiciary, but rather to a model of control and dependence that dates from the pre-
Fascist, liberal period. Id. See also Dam, supra note 47, at 86-87; PIzZORUSSO, supranote
47, at 22-23, 34-35, 38-39.
146. Guarnieri, Justice and Politics: The Italian Case in a ComparativePerspective, 4
IND. INT'L COMP. L. REV. 241, 248 (1994).
1995:] STANDING TO LITIGATE IN THE US. AND ITALY
to the traditional role of simply applying the pre-existing law as it is

expressed in the codes. The traditional role (or self-image) of judges
does appear to be changing:
While some judges, at least the elderly professional judges
in ordinary appellate courts, are still clinging to the image
of the judge as la bouche de la loi, totally aloof from the
socio-political context, large sectors of the younger Italian
magistracy vigorously advocate and practice a greater
involvement in social and political issues as a condition for
the proper exercise of the judicial function. They maintain
that the evaluation of the social and political relevance of
the matters considered by the judge, as well as the attentive
scrutiny of the social and political consequences of judicial
decisions, must be an integral part of the adjudicative
process. And, in fact, their activism has in many ways
done more than that of any comparable group in our
society to foster the development of civil rights, to promote
social reform, and to protect the new collective and
fragmented interests (e.g., the interests of consumers)
which are so characteristic of our mass civilization. 147
This change in the role of judges, and in how many judges see
themselves, has led some scholars to argue that lower court judges
have taken an overly aggressive role in using the Constitution to
effect social change.
147. Trocker, supra note 144, at 220-21. Cf. di Federico & Guarnieri, supra note 54,
at 155; di Federico, supra note 51, at 56; Denti, La Cultura del giudice, 1983 QUADERNI
COSTITuzIoNALI 35, 47 (discussing the changing role of the judge and the significance of
decisions expanding protection of interessi diffusi). Professor Ferrarese suggests that the
process of "decodification" through which new statutes have accreted around the old codes
has reduced the certainty of the civil law system in Italy and has expanded the role ofjudges
generally. Ferrarese, Civil Justice and the JudicialRole in Italy, 13 JUST. SYS. J. 168, 178
(1988-89).
148. Bognetti, supra note 53, at 443. Should a distinction be drawn between ordinary
and administrative courts? What difference does it make that the regional administrative
tribunals (TARs) and the Consiglio di Stato are part of the amministrazione? Professor
Mandrioli explains that one key difference between giurisdizioneand amministrazioneis that
the former is impartial, while the goal of the administration (including presumably the
administrative courts) is to effect (attuare)the interests of the state. MANDRIOLI CORSO I,
supra note 47, §7. Does that make the administrative courts somehow less threatening? Do
they in fact have the same level of independence and power as the ordinary courts? Do they
have entirely different practical problems? See Denti, Civil and Administrative Procedure:
The Differences and Their Explanation, in ITALIAN NATIONAL REPORTS TO THE XIIITH
INTERNATIONAL CONGRESS OF COMPARATVE LAW (1990).
Professor Volcansek suggests that the "negative label of activism" has not attached
to administrative courts in Italy because they can only annul administrative acts and cannot
award damages. As a result, she concludes, they have operated outside the public view and
It also appears that as judges have begun to see their responsibil-

ities and roles more broadly, they have had a significant impact on
the operations of other branches of the government. Judges do have
broad powers that are sometimes thought to be abused, especially in
the criminal context. Professor Trocker stated in 1982, prior to the
passage of the 1988 law on the responsibility of judges, that judges
ran the risk of overstepping their authority and that they should police
themselves to avoid having their independence curtailed. 149 Another
scholar writing in an American journal goes a step further, arguing
that separation of powers in the Italian system does not apply to the
judiciary at all, and that while the judiciary is protected from other
powers of government and is essentially self-regulating, judges are
allowed to participate freely in the other branches. In particular, she
notes that judges may step off the bench and serve in Parliament or
the administration and then return to their judicial positions. 5 °
What is most important for present purposes, however, is how
Italian judges can affect other branches of government through the
cases that come before them or, in the criminal context, cases that
they initiate themselves. Professors di Federico and Guarnieri state
that, as a result of its "monopoly of criminal initiative," the Italian
judiciary "enjoys the power of defining and implementing a large part
of criminal policy without the possibility of being held responsible,
directly or indirectly--as is the case in all other significant democra-
tic regimes-by the political community. 151 The effect of this
power of "defining criminal policy," and its impact on other branches
of the government, has been dramatically illustrated in the last few
are rarely involved in political controversy. Volcansek, JudicialActivismin Italy, in JUDIcIAL

ACTIVISM INCOMPARATIVE PERSPECTIVE (K. Holland ed. 1991).
149. Trocker, supra note 144, at 229 (stating that "disquieting echoes from the Parisian
barricades of the dangers of judicial abuses are being heard again in the halls of the
Parliament in Rome"). The 1988 law relates to the liability of judges for crimes committed
in the exercise of their functions and for other wrongful conduct that causes injury. This law
is discussed in detail in Graziadei and Mattei, Judicial Responsibility in Italy: A New
Statute, 38 AM. J. COMP. L. 103 (1990). For a broader discussion, see Cappelletti, Who
Watches the Watchmen? A ComparativeStudy on JudicialResponsibility, 31 AM. . COMP.
L. 1 (1983).
150. "[1]n the Italian case, ...[separation of powers] works only in one direction -
protecting the judiciary from other powers of government, but allowing judges to participate
actively in other branches." Volcansek, The Judicial Role in Italy: Independence,
ImpartialityandLegitimacy, 73 JUDICATURE 322, 324 (1990). Professor Guarnieri noted in
1994 that there were 13 magistrates serving in the Italian Parliament. Guarnieri, supra note
146, at 253 n.37. The judiciary as an institution also participates in the political process
through its organizations like the Consiglio Superioredella magistraturaand judges' unions
(which have the right to strike). PIzzORUSSO, supra note 47, at 41, 44-51.
151. di Federico and Guarnieri, supra note 54, at 178.
1995] STANDING TO LITIGATE 1N THE US. AND ITALY
years. What was originally a criminal investigation of bribes in large

Northern cities, the Tangentopoli (Bribe City) or Mani Pulite (Clean
Hands) scandal, has led to a government crisis and the resignations
and arrests of hundreds of important political figures. 52 As a result
of these increasingly wide-ranging criminal investigations, two major
parties (the Christian Democrats and the Socialists) collapsed
altogether and a new party, Forza Italia, moved into a position of
power. Its leader, Silvio Berlusconi, a media magnate who had not
previously run for office, became Prime Minister. The continued role
of the judges, and the importance of the public perception of their
role, was illustrated in mid-1994, when the Berlusconi government
attempted to curb what it contended were abuses of preventive
detention procedures by the Mani Pulite judges. In the face of
popular reaction in support of the prosecuting judges who objected to
this restriction of their authority, the government had to retract
promptly its decree. 53
A tension therefore exists in Italy. While there remains a strong
theoretical basis for controlling judicial power, the role of judges is
changing. Some judges attempt to interpret the codes to fit new
socio-political situations, and the judiciary is seen, at least at the
popular level, as an important (and occasionally heroic) mechanism
for limiting the excesses of political and executive power. Di
Federico and Guamieri describe the situation as follows:
To be sure, the majority of the Italian magistrates still
identify themselves more or less with the traditional image
of the judges as the neutral and agnostic interpreter of the
existing body of positive legislation and see the present
situation as a transient one, due to "pathological" reasons,
like the malfunctioning of the parliamentary and govern-
152. The judges who have pursued those "Clean Hands" investigations have become
virtual folk heroes. Pedrick, ObscureMagistrateBecomes ItalianHero By BattlingPolitical
Corruption,WASHINGTON POST, August 7, 1992, at A13, col. 1.
153. The popular press has recorded the swings in popular opinion towards the judges
involved in the Mani Pulite scandal. See, e.g., William Drozdiak, Italian Leader
Interrogated in Bribe Case, WASH. POST, Dec. 14, 1994, at A27. Giorgio Napolitano
describes these investigations as a "bufera giudiziara abbattutasi sul mondo politico." DOVE
VA LA REPUBBLCA 45 (Rizzoli 1994) [hereinafter Napolitano]. While Napolitano, president
of the Chamber if Deputies during the critical period 1992-94, praises the magistrates for
their courage, he also notes the dangers of judicial intrusion into the affairs of another
consitutionally established organ like the Parliament. Professor Trocker's 1982 warning
about "echoes from the Parisian barricades," seems applicable twelve years later as well. See
Trocker, supra note 47. Napolitano quotes Gustavo Zagrebelsky as suggesting that judicial
excesses could lead to pressures to reduce the independence of the magistrates. Napolitano
at 51.
mental systems. Moreover, a number of them still tend to

react strongly against the prospect of seeing the judicial
function polluted by "politics." On the other hand, a
significant minority among the magistrates undoubtedly
have deviated clearly and visibly from the traditional
pattern of life and work once common to the judiciary as
a whole.... Few observers, inside or outside the judicia-
ry, have confronted the problem of justifying the presence
of indeendent and policy making judges in a democracy
Given this situation, where the vitality of "separation of powers"

is not clear, and judges seem to be invited to exercise influence that
would not be tolerated in the United States, it may be that statutes
such as the 1986 environmental law do not tell us much about the
relevance to the American law of standing. My own conclusion is
that even though the American and Italian concepts of separation of
powers are theoretically and practically different, there remains in
Italy enough commitment to controlling judicial authority to make
some comparisons worthwhile. At one level, the Italian statutes
reflect a legislative desire for control over judicial authority; they take
the decision about who can sue away from the courts, and either
confer the right to sue directly by legislation, or grant the decision-
making power to an administrative agency, like the Ministry of the
Environment. On the other hand, despite the reservation of the initial
decision about what we would consider standing, the Italian legisla-
ture has granted courts the authority to consider lawsuits brought by
organizations that claim no injury in fact and that do not seek redress
of any grievance peculiar to them. Indeed, it allows suits by groups
whose only connection with the claim is a strong and fairly long-
standing interest in the issue involved. Apparently, the Italian
legislature has found that granting standing to organizations with no
more than an abstract social interest in the matter at issue does not
ipso facto mean the courts will act irresponsibly, or that they will
impermissibly intrude on the powers of the other branches of the
government. This does suggest, however, that the American rules on
standing, purportedly designed to restrict the power of the judiciary
by keeping exactly such plaintiffs out of the courts, could be
reexamined-it is not enough simply to continue reciting that "injury
in fact" is essential to limit the power of the courts.
The response to this argument may be that the Italian system
154. di Federico & Guarnieri, supra note 54, at 155-56.

controls the courts in other ways that may not apply in the United
States. That is, the Italian parliament can afford to grant standing so
broadly because there are other factors, both doctrinal and practical,
controlling the courts' powers.155 For example, as most commenta-
tors acknowledge, there remains enough of the traditional theoretical
limitation on civil law judges' ability both to interpret the constitution
and to make law in order to deter courts from being too aggressive
in extending their powers. 15 6 Additionally, there are limitations on
the ability of Italian judges to adopt the broad remedies often
implemented in American federal courts, especially in public law
litigation.'57 If those limitations do exist, the courts would not be
able to implement whatever lawmaking they might try to engage in.
Professor Cappelletti has also noted other differences between
155. There are also factors restricting the power of plaintiffs on whom standing to sue
is granted, especially if the plaintiff organizations are themselves subject to formal or
informal governmental control. The statutes that confer standing may reflect the Italian
history of corporatism, which created joint committees of private industry and government
officials to manage certain aspects of the economy and culture. In discussing the 1986
environmental law, for example, Professor Trocker draws a parallel to a Royal Decree of
1925 that limited the right to bring actions for fraudulent conduct in the preparation and
marketing of agricultural products to certain associations approved by Ministerial Decree.
Trocker, supra note 73, at 143. See generally Ciardetti Thesis, supra note 73.
From this corporatist perspective, the idea of the government (or a mixed
government and private body like the National Environmental Council) certifying some
groups as competent to sue seems more understandable. The statutes could be read as
making the unions, the environmental groups and the Red Cross into quasi-governmental
agencies that are granted powers to supplement the government's own enforcement activities.
As noted above, the "certification" procedure under the 1986 law may preempt any other
access by environmental groups, and the seventeen groups themselves have apparently not
welcomed others. Does this make these plaintiffs less threatening to the operations of the
ammninistrazione? Ciardetti suggests as much. Id. at 186.
If the organization has quasi-governmental status, does that change the entire
separation of powers analysis? Does it make them, as my colleague Professor Wallace
Mlyniec suggests, more analogous to a litigating ombudsman or public counsel, who are paid
out of public funds to oversee the utilities regulation process?
156. Bognetti and Trocker express some concern that judges are in some cases
overzealous in their desire to use the Constitution to implement social goals. Bognetti, supra
note 53, at 443; Trocker, Judicial Responsibility, supra note 52, at 217-18. On the other
hand, Professor Pizzorusso suggests that the courts' power to control the government, or
amministrazione,is limited by the knowledge that the Constitutional Court has the ultimate
power to determine when a government action violates the constitution. PIZZORUSSO, supra
note 47, at 16. Modona argues that during both the pre-Fascist and Fascist periods, judges
were subject to institutional controls from the ministry of justice and were habituated to
being "faithful interpreters of the will of the executive power" ("l'abitudine di farsi
interpretefedele della voluntei del potere esecutivo. . ."). Modona, supranote 145, at 142.
157. Cappalli and Consolo point out that Italian judges do not have general contempt
powers and that their ability to manage the litigation before them is limited. Cappalli and
Consolo, supra note 47, at 255-57 n.234.
COLUMBIA JOURNAL OF TRANSNATIONAL LAW [
[33:259
civil and common law systems that he feels restrict the civil law
courts' power to "make law" and presumably renders them less likely
to intrude on the authority of other parts of the political system:"'8
1) the lack of a "compact, unitary, manageable structure"
of the higher courts, so that authority is overly diffuse;
2) the inability of higher level civil law courts to select the
appeals they will decide, so that the courts are swamped
with cases and are not able to focus on the need to clarify
or modernize the law; and
3) the lack of stare decisis, which of course reduces the
authority of any case decision."'
In addition to these restraints, the Italian courts are faced with
significant practical problems. The greatest problem is one of delay.
It is generally acknowledged that the backlog of cases in both the
civil and criminal systems has led to a breakdown in the justice
system in Italy."60 The roots of the problem of delay are many and
deep. For example, commentators have stated the problem in Italy is
not that the "inquisitorial" judge has too much power, but rather that
he or she does not have enough; the Code of Civil Procedure requires
the judge to be too passive and too dependent on the parties to move
the case along.1 61 The structure of Italian trials has also been
identified as a fundamental problem that hampers the power of the
courts and has led to a fuga dalla giustizia-anabandonment of the
158. Cappelletti, supra note 140, at 60-63. Professor Cappelletti also notes, as do other
scholars mentioned above, the bureaucratic nature of the judicial career, which emphasizes
interpretive, rather than policy oriented, decisionmaking. Cf. KONRAD ZWEiGERT & HEIN
KOTz, AN INTRODUCION TO COMPARATIVE LAW: THE INSTITUTIONS OF PRIVATE LAW 129
(Tony Weir trans. 1977) (discussing the French system and arguing that it is difficult for
judges to make names for themselves because of the use of panels, the prohibition of
dissents, and the "repression of personal characteristics" required by the style of judicial
decisions).
159. Cf Brilmayer, supra note 26, at 321 (elimination of stare decisis would decrease
the courts' authority over time). The power of precedent (i.e. the power of individual cases
to affect the course of subsequent lawmaking) may explain why American courts have
adopted fairly strict rules of standing. Professor Cappalli has suggested to mein correspon-
dence that the requirements of"injury in fact" and "redressibility" limit the courts to dealing
with certain types of cases, and thus they restrict the opportunityfor courts to make new case
law. In contrast, since Italian decisions are not (at least in theory) binding in later cases,
there is less need to restrict the kinds of cases that are litigated. Correspondence with
Professor Cappalli (November 1, 1994) (on file with author). See also infra, at page 318.
160. For a recent discussion of the problem of delay, see Chase, Civil Litigation Delay
in Italy and the United States, 36 AM. . COMP. L. 41, 57 (1988).
161. See Id. at 68. The Italian system is not consistent with the usual image of the
inquisitorial system where the judge dominates trial proceedings.
1995) STANDING TO LITIGATE IN THE US. AND ITALY
civil justice system and a resort to other means of dispute resolu-

tion.1 2 Finally, the Italian judge's power is also limited by the
practical restraint of a lack of resources, both in terms of the tools for
judicial administration and the facilities to ensure implementation of
any judgments that might be rendered. It is beyond the scope of this
article to examine all these claims about the weaknesses of the Italian
system, or to explore all the differences in the two legal cultures, but
cataloging them does indicate that it is misleading to suggest that the
Italian system could simply be transplanted to the United States. 63
While the Italian experience is not directly transferable into the
United States (certainly many of the restrictions on Italian courts are
undesirable as a practical matter), that experience nevertheless offers
some insight into the American system. Both the American and
Italian systems are interested in restricting the authority of the courts
to intervene in the operations and administration of government, thus
keeping the undemocratic judicial power in check and preserving
some form of separation of powers 4 The Italian experience does
show that insisting on injury in fact to keep experienced public
interest groups out of the courts is not the sine qua non to achieving
these ends-in Italy, they are apparently achieved in other ways.2F
The point is not that we should do what the Italians do, but rather
that the role of injury in fact should not be considered self-evident.
Merely reciting the customary separation of powers rationale, without
examining the practical consequences of dispensing with injury in
162. See Ferrarese, supra note 52, at 168. Most of the proposed reforms to the Code of
Civil Procedure go to the problem of the extraordinary delays in the civil litigation process.
163. See Cappalli and Consolo, supra note 47, at 291-92.
164. Professor Trocker has expressed his views of the Italian system in American terms:
"The more powerful role accorded judges in the interpretation and evolution of the law [by
recent developments] must be balanced by a rigorous adherence to the principles of
impartiality, the connection of adjudicationwith 'cases and controversies,' and the right of
the parties to a fair and just day in court." Trocker, JudicialResponsibility, supra note 52,
at 229.
165. Restricting the power of the courts could also be achieved in other ways in the
United States. Congress plainly knows how to do so by directly denying jurisdiction to deal
with certain issues (such as abortion), limiting remedies, imposing stringent exhaustion
requirements, or refusing to authorize attorneys' fees. If the Congress were to find that the
courts are interfering too much with "law enforcement entrusted to administrative bodies"
(as Justice Scalia put it in Lujan), it could prevent that interference by regulating the courts
directly; it need not rely on the courts themselves to exercise this self restraint by adopting
rigid rules on access. However, the rules on standing may be preferable to statutes that
remove entire categories of cases from the federal courts' jurisdiction or take away traditional
remedial powers.
COLUMBIA JOURTAL OF TRANSNATIONAL LAW [33:259
fact, is not sufficient to justify our current rules on standing. 166
B. Other Goals of Standing: Ensuring Concreteness

A second goal of the American law of standing, and a second
rationale for the injury in fact requirement, has to do with concrete-
ness. Courts have asserted that they need concrete facts to decide a
case properly and that a showing of an injury in fact to the particular
plaintiff who wants to bring the case ensures that concreteness.
Justice Kennedy's concurring opinion in Lujan v. Defenders of
Wildlife offers a recent expression of this view of injury in fact:
While it does not matter how many persons have been
injured by the challenged action, the party bringing the suit
must show that the action injures him in a concrete and
personal way. This requirement is not just an empty
formality. It preserves the vitality of the adversarial
process by assuring both that the parties before the court
have an actual, as opposed to professed, stake in the
outcome, and that 'the legal questions presented.., will be
resolved, not in the rarified atmosphere of a debating
society, but in a concrete factual context conducive to a
realistic appreciation*of the consequences of the judicial
action.' Valley Forge Christian College v. Americans
United for Separation of Church and State, Inc., 454 U.S.
464, 472 (1982). In addition, the requirement of concrete
injury confines the Judicial Branch to its proper, limited
role in the constitutional framework of government. An
independent judiciary is held to account through its open
proceedings and its reasoned judgments. In this process it
is essential for the public to know what persons or groups
are invoking the judicial power, the reasons that they have
brought suit, and whether their claims are vindicated or
denied. The concrete injury requirement helps assure that
166. In any event, keeping parties out through the device of standing may not be an
important limit, since the broad remedial and lawmaking powers of American courts can
probably be exercised in many cases where the plaintiff meets even our restrictive rules on
access. Though the rules on standing do in fact keep some plaintiffs out of court, they do not
keep issues out of court, as Scalia noted in 1983. Scalia, supra note 24, at 892. Nor is it
clear that the standing rules actually restrict the power of the court or ensure separation of
powers at all. See Franklin v. Gwinnett County Public Schools, 112 S.Ct. 1028, 1033 (1992),
quoting Bell v. Hood, 327 U.S. 678, 674 (1946) (concerning the federal courts' broad power
to "use any available remedy to make good the wrong done"). No one has explained how
adding plaintiffs like those insisted on in Lujan better restricts the courts' powers to control
other parts of the government. See also Poisner, supra note 138.
there can be an answer to these questions; and, as the

Court's opinion is careful to show, that is part of the
constitutional design. 67
Justice Kennedy therefore offers three slightly different rationales for
requiring "an actual, as opposed to a professed, stake in the out-
come:" (1) it guarantees the vitality of the adversary process, (2) it
ensures the court will "appreciate the consequences of the judicial
action," and (3) it facilitates "open proceedings" by making clear to
the public who the parties are and what results they wish to obtain.
Before considering whether the Italian experience sheds any light
on these points, it is necessary to ask whether Justice Kennedy's
arguments are persuasive even in the context of the American system
itself.'68 The first argument, that injury in fact is essential to ensure
adversariness and an adequate presentation of the issues, seems
demonstrably incorrect-even Justice Scalia does not buy that
rationale.' 69 A case like Lujan itself belies any suggestion that an
environmental organization is not prepared to litigate the issues
vigorously and be an effective adversary. It is hard to establish why
the addition of a more specifically injured person, such as a member
of Defenders of Wildlife with airplane tickets to Sri Lanka, would
have actually added very much to the court's understanding of the
issues before it.
It is also difficult to understand why a court needs a concrete
factual context to "appreciate the consequences of the judicial action."
Courts certainly decide cases based as much on hypotheticals as on
167. 112 S.Ct. at 2147. It has become less common to assert a need for concreteness
as the basis for rules on standing. Tribe says the Burger Court shifted away from a rationale
based on concreteness and the need to have adequate facts to a strong emphasis on separation
of powers as the rationale for a standing requirement. LAURENCE H. TRIBE, AMERCAN
CONSTrrUTIONAL LAW, §3-26 at 108.
168. Some scholars say that there is no connection at all between concreteness and
standing. See, e.g., Sunstein, supra note 27, at 1448 (insisting that "the problem of
concreteness has nothing to do with the question of standing"); Bandes, supra note 27;
Fletcher, supra note 27, at n.8. On the other hand, HART & WESCHSLER's, supra note 30,
at 66-67, in discussing the reasons for discouraging advisory opinions, emphasizes the
importance of a "concrete set of facts" to reach a proper decision.
169. Scalia, supra note 24 at 891-92. Other scholars have also recognized that
organizations with experience, resources and a broad understanding of the issues may in fact
be the best plaintiffs. See, e.g., Fletcher, supra note 27, at 260, suggesting a "well-
established environmental group possibly should be permitted to bring suit under [NEPA]
even if it has no members who use the park land." See also Tushnet, supra note 27
(suggesting that the NAACP is the kind of group that should be granted access because no
one else has enough interest to sue); Sunstein, supra note 27, at 1448 (stating that
"institutional litigants not having injury in fact are particularly likely to be strong
advocates").
the particular facts of the case before them, in that they speculate
about the effects of their rulings in other fact situations. Professor
Fletcher points out that the Supreme Court has decided questions "in
the highly abstract form traditionally thought particularly ill-suited for
judicial resolution.""17 Furthermore, as with the argument based on
adversariness, it appears that an experienced organization could
provide a court with all the information it needs to understand the
implications of its rulings; indeed, an organization would probably be
more capable of providing this kind of information than an individual 171
whose concerns may focus only on her immediate interests.
Finally, with regard to "open proceedings," Justice Kennedy does not
explain why it would not have been clear to the public that Defenders
of Wildlife was the group invoking the judicial power to question the
actions of the government, why they brought suit, and whether their
claims were vindicated or denied. In any event, it is unlikely that the
public pays any attention to who the parties are in litigation involving
broad questions of policy, such as school prayer and abortion rights.
The public at large surely knows even less about "the reasons that
[the plaintiff] brought suit." This "open proceedings" argument
seems seriously flawed and its connection to notions of concreteness
(and standing) tenuous at best.
In a case like Lujan, it is very difficult to see how the issues
could have been any more concrete, how the issues could have been
presented any more vigorously and adversely, and how the implica-
tions of a decision in the case could have been any more clear.
Presumably the Court would have granted standing in Lujan to a
person with no scientific expertise at all, no prior interest in or
experience with the federal regulatory process, and counsel with no
litigation experience, so long as the plaintiff could state that she
170. Fletcher, supra note 27, at 286.

171. There is a risk that the injured person's claim could be so idiosyncratic that it can
actually mislead the court about the effects of its decision. See, e.g., Davis v. Southeastern
Community College, 442 U.S. 397 (1979), where the combination of a plaintiff's particular
disability (a hearing impairment) and the job for which she was seeking training (nursing)
contributed to the Supreme Court's narrow reading of an employer's obligations to
accommodate employees under Section 504 of the Rehabilitation Act of 1973.
Professor Cappelletti makes the important point, in arguing that courts are not well-
suited to make law because of the limited resources available to them, that "clients are
interested in the decision of their case and not in the development of the law." Cappelletti,
supra note 140, at 49. See also Myers v. United States, 272 U.S. 52 (1926). In one sense,
this reinforces an argument that a focus on the particular facts of a case, and the injured-in-
fact plaintiff's personal stake, may result in bad law; i.e. law that is so focused on the
peculiarities of the plaintiff's claim that it creates a precedent that can have adverse and
probably unintended effects on other parties.
intended to observe certain animals in a specific area of the world on

a specific date. Such a plaintiff surely would not have helped a court
understand the issues better than an organization such as Defenders
of Wildlife. It is therefore doubtful that the injury in fact requirement
actually improves the quality of judicial decisionmaking in the
manner Justice Kennedy suggests, and it is easy to see why the courts
have moved away from that justification.172 This conclusion may
be bolstered by a review of the Italian experience and particularly by
a reference to the 1986 environmental law. That law adopts exactly
the approach from which U.S. courts have recoiled. To find the party
most able to present the issues effectively, it has selected organiza-
tions with no injury in fact at all and with only an abstract social
interest in the issue before the court. Proposals such as the disegno
Spadolini and that of Professor Vigoriti take the same approach,
focusing on the selection of a plaintiff who will understand the issues
and be able to do a good job presenting the case, irrespective of the
existence of a specific injury.173 Professor Denti suggests that the
inquiry into the particulars of the plaintiff is (or should be) more akin
to that governing Rule 23, which deals with the appropriateness of a
class representative, than to standing. 74 Italian law therefore seems
to be based on the belief that courts can fully examine the issues and
reach quality decisions even if the plaintiff is not the specific victim
of the alleged illegality and even if there is no claim of a concrete
injury.
However, any attempt to draw conclusions from the Italian
experience must be tempered by the recognition that judicial decisions
may serve a different purpose in the U.S. (or any other common law
country) than they do in Italy. 75 In the United States, case deci-
sions are law, and they become precedents for future cases. Common
law judges pay close attention to facts in order to know what impact
a decision will have on other parties not before the court because the
172. Poisner, supranote 138, at 334 n.66, concludes that".., the doctrinal requirements
that the Court has created in the last 15 years bear virtually no relationship to the
instrumental goals [of insuring competent decisions by courts in an adversarial system]
thought to be at work in the Warren Court."
173. See discussions of the Spadolini and Vigoriti proposals above at note 130.
174. Denti, supra note 108, at 305.
175. It is also possible that Italian civil litigation itself is intended to do something
different than litigation under the U.S. system. Some scholars have suggested that, prior to
the change in the Criminal Code in 1989, it was generally acknowledged that the purpose
of an Italian criminal trial was to find the truth; it was not to ensure that a person would not
be subject to penalties unless the state proved its case beyond some standard of doubt. Pizzi
and Marafloti, The New Italian Code of CriminalProcedure: The Dicffullties ofBuilding an
Adversarial Trial System on a Civil Law Foundation, 17 YALE J. OF INT'L LAW 1 (1992).
COLUMBIA JOURNAL OF TRANSNAT[ONAL LAW [33:259
specific facts are important to help later judges and lawyers sort out
holdings and dicta and to determine what law the case creates.'76
In Italy, case decisions do not make law, at least in theory. As
explained above, there is no doctrine of stare decisis and no formal
notion of precedent, and Italian decisions and doctrine seem much
less concerned with distinguishing cases based on the "nice factual
distinctions" referred to by Professor Cappelletti.' Judges do not
need to consider so carefully the potential impact of their decisions
beyond the immediate parties. 7 Hart and Wechsler, as noted
earlier, suggest that concrete facts are important in "the judicial
development of the law."' 79 If that is true, facts may be less critical
where the courts are not responsible for "developing the law" at all,
as in Italy 80
The absence of a formal system of precedent in Italy may
therefore limit the usefulness of conclusions about the need for
concrete facts in deciding cases in the United States. As mentioned
above in note 55, however, decisions of the Court of Cassation are
relied on by lower courts and clearly do shape the results in later
cases. In addition, there are Italian cases that do serve as precedent
in a more formal sense and even in those cases there is less emphasis
on specific facts. The Constitutional Court, whose decisions are
176. This may be the aspect of our system to which Justice Kennedy is referring when
he speaks of the need for a "concrete factual context conducive to a realistic appreciation of
the consequences of the judicial action." 112 S.Ct. at 2147.
177. CAPPELLETTI, CIVIL PROCEDURE, supra note 47, at 182. As noted above at note 56,
case reports in Italy generally lack the rich factual data of their American counterparts.
Professor Cappelletti notes that decisions "read more like excerpts from treatises or
commentaries on the codes than the reasoning of a court deciding a concrete case."
Cappelletti, THE ITALIAN LEGAL SYSTEM, at 252.
178. Professor Brilmayer suggests that the courts might be more willing to review a case
"where the plaintiff's personal stake is problematic" if the litigation would not establish a
precedent. Brilmayer, supra note 26, at 316-17.
179. HART & WECHSLER'S, supra note 30, at 67.
180. Professor Ferrarese suggests a slightly different reason why Italian courts are less
concerned with concrete facts:
...the judge is a 'guardian of the law,' and the judge's decision must be
formally accurate rather than appropriate in a problem solving sense. The
judicial job is not directed toward any concrete aim (e.g. to help the
weaker party reach substantive justice), but to the consistent application
of statutes. This conception is based on a logic of due process: if the
judge is blind regarding the concrete purposes of the parties, they will be
protected against arbitrary or biased decisions.
Ferrarese, supra note 52, at 170-71.
While there may be a risk of linking the use of the word concrete together in two
disparate contexts, this comment does suggest why Italian courts have not felt that the facts
of a particular case are critical and why there is little inquiry into redressability.
indeed precedential,"8 ' provides what we would consider to be

advisory opinions, deciding cases referred up from the courts below 12
before the facts are established and concreteness is created at all.
Those cases do operate as precedents, but in many cases they seem
to lack the "concrete" facts deemed so essential by American courts.
It is therefore difficult to draw conclusions from the Italian
experience. That experience might be read to show that, even
without requiring injury in fact, there are other ways to ensure the
court has before it a sufficiently concrete case or controversy. All the
Italian statutes have mechanisms to screen plaintiffs to be sure that
they have both expertise and a demonstrated interest in the issue they
seek to litigate. The Italian courts will also presumably still insist on
some real controversy, as required by article 100 of the Code of Civil
Procedure; they may continue to refuse to hear cases that are
theoretical and generic.
At the same time, as Professor Brilmayer suggests, 8 ' some
attention to and insistence on concrete facts may play an important
role in a common law system that is not present in a civil law one.
There are unique problems inherent in creating a system of stare
decisis where a judgment necessarily binds later litigants.'84 If
Brilmayer is correct, Professor Cappelletti's "nice factual distinctions"
are essential to the system of stare decisis. That may explain how the
Italian judicial system can entertain cases that involve no injury in
fact.
181. See supra note 53 and accompanying discussion.

182. See Vigoriti, Admonitory Functions of Constitutional Courts:Italy, 20 AM. J. OF
COMP. L. 404, 409 (1972) for a discussion of the various ways in which the Constitutional
Court can control the actions of lower courts. See also Pizzorusso, Vigoriti and Certoma,
The ConstitutionalReview of Legislation in Italy, 56 TEMPLE L.Q. 503 (1983).
Is it correct to conclude that the Constitutional Court considers cases, and rules on
questions, that a U.S. court would consider unripe? Aside from refusing to consider a case
because of the failure of the lower court or the parties to comply with the procedure for
getting such cases before the Court, would the Court refuse to consider a case because it was
not ripe, or because rendering a decision would involve only an advisory opinion?
Professor Pizzorusso says a decision of the Constitutional Court is "concrete in that
it depends on specific controversies to which the statute whose constitutionality is doubted
should be applicable." Pizzorusso, Italian and American Models of the Judiciary and of
JudicialReview of Legislation: A Comparison of Recent Tendencies, 38 AM. J. COMP. L.
373, 378. However, he makes that point by way of contrast with the Austrian system, where
reviews of legislation are "abstract in the sense that they [do] not necessarily presuppose a
relationship to which the challenged statute [has] been or should [be] applied... ." Id. at
379.
183. Brilmayer, supra note 26.
184. It might also affect the court's understanding of the impact of its decision on the
parties, thereby lending some validity to Justice Kennedy's second point. 112 S.Ct at 2147.
Therefore, while the Italian experience may show that intensely

fact-oriented inquiries into standing and personal stake are not critical
to reaching a well reasoned and fully informed decision, there may
also be limits to the usefulness of the Italian lesson. Eliminating the
injury in fact requirement would not necessarily reduce the richness
and specificity of the facts before a court-a public interest group
could certainly present a full picture of the. issue, drawing on its past
experience, the interests of its current membership, and its expertise
in the issues at stake. However, if the factual detail available to a
court were reduced, the usefulness of the resulting decisions as
precedent might be affected. Even if the current rules on standing
were revised, the courts would still want to ensure that they have
before them enough information to make an informed decision and to
write an opinion that would serve as a useful precedent. In a
common law system like ours where court decisions define the law
and affect the rights of litigants in later cases, decisions so skeletal
and formulaic that they resemble headnotes (or massime, the brief
reports of case results that are often the only record of Italian courts'
decisions) would be of limited use.
The Italian experience therefore suggests that this aspect of our
rules on standing should be explored further. Just as it is inadequate
simply to assert that injury in fact is essential to preserve separation
of powers, it is equally inadequate simply to assert the need for
concrete facts without examining how those facts are important in a
common law system, and how the injury in fact requirement assures
the court will have the essential facts before it.
V. CONCLUSION
This article has focused on the two most commonly asserted

rationales for the American law of standing: the protection of the
system of separation of powers and the need for courts to have parties
before them who will assure vigorous and skillful litigation of the
issues. I have therefore set aside other questions and other rationales
that have occasionally been offered to explain the American law of
standing such as the following:
Does the current law protect the interests of third persons
who are not parties and who may be affected by a decision
in the future?
Does it conserve judicial resources (and if it does, is the
current law a rational way to do so)? 185

Does it allow the courts to avoid consideration of political
questions without explicitly acknowledging they are doing
so?
Does it allow the courts to avoid potentially unpalatable
decisions on the merits by disposing of claims on procedur-
al grounds?
Does it allow the Supreme Court to prevent any future
court from ruling on the merits in such cases?
Does it allow the courts to limit the scope and effect of
remedies by narrowly defining the kinds of injuries subject
to judicial protection?
Finally, does it allow the courts to determine sub rosa
which rights are deserving of protection and which are not?
This article suggests, like many others before it, that injury in
fact, the central element of current American rules on standing, is not
necessary to achieve the principal goals asserted to justify those rules.
The Italian system shares at least some of the goals considered
critical to the American system but incorporates statutes that dispense
with notions of injury in fact and would not be constitutionally
permissible in the U.S.. The parallels are admittedly not precise-
Italian case law has a different doctrinal significance since there is
greater deference in Italy to legislative judgments about the power of
the courts, and the culture in which the Italian rules, and the courts
implementing them, operate may be very different from that of the
United States. The imprecision of the parallels illustrates the risk of
simply transplanting an idea from one rich and complicated legal
culture to another.
The conclusion here therefore does not suggest the Italian rules
can or should be simply transplanted into American federal courts or
that the U.S. Congress should adopt statutes similar to those discussed
above. Nor does it suggesi that the Italian procedure is superior to
the American one or that having rules like those adopted in the new
Italian statutes is going to solve the fundamental problems of
inefficiency and lack of resources that have led to the fuga dalla
giustizia. It does suggest, however, that injury in fact may not be an
indispensable concept, and that separation of powers and the quality
of decision-making could be preserved by other means. Courts and
185. Vigoriti emphasizes the conservation of judicial resources as a basis for the law of
standing. VIGORm, supranote 16, at 69
318 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [33:259
scholars should look more closely at the reasons for these rules,
examine their practical consequences more carefully, and determine
what their actual effect is. Such a practical examination may lead to
needed reforms in the rules governing access to the federal courts.

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Standing to Litigate "Abstract Social

An American lawyer seeking to compare the Italian and

I. OVERVIEW AND INTODUCTION ................... 261

I. OVERVIEW AND INTRODUCTION

In American federal courts, the law of standing continues to be

10. See Chayes, supra note 5.

potential incompatibility of legal cultures. Nevertheless, I have

II. AN OVERVIEW OF THE LAW OF STANDING N THE UNITED STATES

Repetition of the well known rules on standing may be justified

14. 112 S.Ct. 2130 (1992).

A. The Common Law of Standing in the FederalCourts

their own behalf, independent of the interests of their members. To

autonomy of those who are not present.26

B. Standing and the Congress

aesthetic purposes, is undeniably a cognizable interest for purposes of

government funding, will impair a "separate concrete interest. '

opinion to suggest a contrary view." 2 However, Justice Blackmun

judicially designed hole (the requirement of an injury in fact).45 No

In. THE ITALIAN PARALLEL

A. The Italian Doctrine Relating to "Standing"

be shaking free of old strictures, largely due to legislative action. To

(originally adopted in 1940).5o

50. The Code of Criminal Procedure (Codice di procedurapenale), originally adopted

implications for an analysis of rules relating to access to the courts.

57. Fletcher, supra note 27, at 227.

cases. Nevertheless, that provision of the Code of Civil Procedure

The same cannot be said about legittimazione ad agire,the other

appears to recognize a clearer link between standing and the merits

B. Standing Doctrine as Applied in the Italian Courts

connection with issues involving the natural environment, protection

The ordinary courts have therefore not been a particularly

di Firenze, FacoltA di giurisprudenza)[hereinafter "Ciardetti thesis"]. I am grateful to

trative courts have not granted unlimited access to groups and

C. Italian Legislation Relating to Standing

administrative courts as well. Glos, Italian Administrative Authorities and Administrative

1. The 1967 Building Construction Law

2. The 1970 Workers' Law

activity of unions (la liberd e l'attivitd sindacale),including the right

87. Article 28, STATuTo DEi LAVORATORI.

procedure, the union plaintiff need not allege an injury to any

one involving anti-union conduct cognizable under article 28.9'

3. The Italian Red Cross

4. The 1986 Environmental Law

98. Id. Article 6.

Environment.' The minister bases her decision on the programmatic

110. C.P.p., art. 91

The second important facet of article 18, section 5 is even more

regulations, the Lega Ambiente alleged, interalia,that the regulations

cause. In American terms, the 1986 statute confers standing on

earlier statute.124 In both cases, the legislature has conferred a

5. Proposed New Legislation

an organization would be required to file periodic reports covering its

b. The Sexual Violence Statute

no such restriction on the power of the Italian legislature. 134 As

IV. IMPLICATIONS OF THE ITALIAN EXPERIENCE

What implications does this description of the Italian system for