Much of what we think we know about the nature of judicial power in the early Republic comes from the history of English common law. Our focus on the common law seems natural enough: Blackstone’s Commentaries on the Laws of England shaped many an antebellum lawyer’s notion of legal practice, and jurists in the twentieth century quite deliberately pointed to the courts at Westminster when discussing the origins of judicial power in America.
An emerging body of scholarship has come to question this single-minded focus. Litigation in eighteenth-century America was an eclectic affair, also drawing on the practices of the courts of equity and admiralty, which relied on Romano-canonical alternatives to the common law writ system. Recognizing an inquisitorial role for judges and often relaxing strict adversary requirements in the issuance of investitive decrees, these courts registered legal claims and tested the boundaries of official authority.
This Article examines the rules of standing to sue that emerged from one important court’s reliance on civil law modes of practice. The Scottish Court of Session heard cases in both law and equity and, early on, developed a declaratory practice that allowed litigants to test their rights in a setting where no coercive judgment was contemplated. While in private litigation the Scots imposed standing limits—or what the Court of Session referred to as title and interest to sue—they also permitted individuals to bring an actio popularis, or popular action, in certain circumstances. The Scottish actio popularis allowed individual suitors to press legal claims held in common with other members of the public. By offering an account of Scots practice, this Article illuminates a remarkably mature but long-ignored body of standing law. In doing so, it draws upon Scottish ideas to explore the origins of modern standing law in the United States, the viability of claims asserting generalized grievances, and the importance of representational adequacy and nonparty preclusion to a full understanding of public law litigation.
James E. Pfander,
Standing To Sue: Lessons from Scotland’s Actio Popularis,
66 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol66/iss7/2