Professor Carvey examines a very theoretical issue-whether standing objections are jurisdictional, claim-related, or both-to resolve a rery practical problem-hotc to characterize motions to dismiss for lack of standing, As he notes. the choice of characterization under the Federal Rules of Ciril Procedure has important practical consequences for the litigator, involving cridentiary limitations, consolidation requirements, and the resjudcata effcct of dismissal. Professor Carrey suggests. as a solution to the litigator's dilemma, that both rule 12(b k I and rule 121b t16 are appropriate means by which to raise standing objections in the constitutional sense since a determination that the plaintiff lacks standing means both that the court lacks jurisdiction and that the plaintiff has failed to state a claim On the other hand, since prudential standing objections rest on the very considerations that determine whether a court will infer a right of action, they should be treated as entirely claim-related and therefore should be made under rule 12(b 6) only.
John H. Garvey, Litigation Primer for Standing Dismissals, 55 N.Y.U. L. REV. 545 (1980).