Those Who Litigate Another's Right: The Basis of Standing to Conduct Litigation

Abstract

This volume asks whether, when the holder of a right and the person conducting the litigation differ, the remedy still reaches that right holder. Only when both the basis of the standing to conduct litigation and the person to whom the effect of the judgment will accrue are stated can subrogation, selection, and succession be distinguished from a mere lending of one's name. The path to relief opens where the subrogating creditor's preserved claim and the need for preservation, or the basis of the standing to conduct litigation arising from selection or succession, are recognized, and closes where the subrogating creditor's preserved claim is not recognized or there is no statutory basis for litigating on behalf of another. The six sections address, in turn, the right preserved by subrogation, rights that cannot be exercised by subrogation, litigation conducted pursuant to selection, succession during the pendency of the suit, identification of the right holder, and the distinction between standing to conduct litigation and the substantive right. The strongest counterargument is as follows. Requiring the direct participation of the right holder would effectively block collective and subrogated protection of rights. Diagrams of party relationships and the management of parallel proceedings are not addressed in this volume.