The Scottish Actio Popularis
Standing in the Eighteenth Century Scottish Court of Session
James E. Pfander
Abstract—Much of what we think we know about the judicial power in the early Republic comes from accounts of common law legal process, with its emphasis on adversary disputes over mine and thine. Our focus on common law process 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 as a definitive source of insight into the origins of judicial power in America.
An emerging body of scholarship has come to question this single-minded focus on English common law process. Litigation in eighteenth century America was an eclectic affair, also drawing on the practices of the courts of equity and admiralty, which operated outside the common law and relied on Romano-canonical alternatives to adversary procedure. Recognizing an inquisitorial role for judges and often relaxing strict adversary requirements in the issuance of investitive decrees, these civilian courts registered legal claims and tested the boundaries of official authority.
This paper examinesthe rules of standing to sue that emerged from one important court’s reliance on civilian modes of practice. The Scottish Court of Session heard cases both in law and equity and early developed a declaratory practice that allowed litigants to test their rights in a setting where no coercive judgment was contemplated. While the Scots developed a set of constraints designed to ensure standing in private litigation – or what the courts referred to as title and interest to sue – they also permitted individuals to bring anactio popularis, or popular action, in certain circumstances. The Scottishactio popularis allowedindividual suitors to press a legal claim held in common with other members of the public. By offering an account of Scots practice, this paper illuminates a remarkably mature but long ignored body of standing law, drawsupon Scottish ideas to interrogate the rules of standing in the United States, and extendsthe growing literature on influential alternatives to the common law.
Standing in the Eighteenth CenturyScottish Court of Session
I.Introduction
In defining the scope of the nation’s judicial power, the Supreme Court frequently characterizes itself as bound by the “case-or-controversy” requirement of Article III of the Constitution, a requirement it tends to define by reference to English legal history. Thus, Justice Felix Frankfurter, an influential twentieth century exponent of standing limits, invoked the English judicial system in explaining that the federal “[j]udicial power could come into play only in matters that were the traditional concern of the courts at Westminster and only if they arose in ways that to the expert feel of lawyers constituted ‘Cases’ or ‘Controversies.’”[1] As elaborated over the ensuing decades, the case-or-controversy requirement has been said to encompass a range of familiar justiciability limits, including the idea that only plaintiffs with standing can invoke the judicial power[2] and only in the context of a live dispute between adverse parties.[3] But the connection to England remains; indeed, Justice Scalia hasinvoked the practice of our “English ancestors” in the course of a spirited dissent from an exercise of judicial power in a context he viewed as insufficiently adversarial.[4]
An emerging body of scholarship contests this single-minded focus on the law of England as the only source of insight into conceptions of the judicial powerin the early Republic.[5] Scholars have questioned the adversarial assumptions that inform traditional accounts of the nature of the judicial function in the United States;[6] they have argued that Roman-canonical modes of inquisitorial practice characterized a wide range of federal judicial proceedings;[7] they have argued that Scottish legal architecture, with its supreme Court of Session, may have provided one important model for the hierarchical structure of the federal judicial system;[8] and they have challenged both the injury-in-fact and adverse-party elements of modern standing law.[9] Efforts to recover a better understanding of the broad-gauged nature of America’s legal inheritance continue on many fronts.[10]
Working within this emerging scholarly tradition, this Article carefully assesses a surprisingly mature but whollyneglected body of standing law,that which governed practice in the eighteenth century Scottish Court of Session. The Court of Session served as Scotland’s highest court in civil law matters, it exercised broad original and appellate jurisdiction, and it presided over suits in law and equity.[11] By the eighteenth century, Session had long recognized the propriety of actions for injunctive and declaratory relief and would declare the respective rights of the parties even in cases where the Crown appeared as a party in interest.[12] The practice of the Court of Session thus offers an overlooked but potentially valuable source of historical and comparative insight into the law of standing that later came to define and constrainthe work of the courts of the United States.
The Scottish law of standing has a surprisingly contemporary feel. For starters, the Scots developed a set of rules that would govern the standing of parties in the ordinary course of private litigation. The Court of Session framed this standing inquiry in terms of the plaintiff’s (or pursuer’s) “title” and “interest” to sue.[13] To pursue a claim, plaintiffs were required to show both that they had an interest in the relief being sought and that they had title to pursue the claim. Not everyone with an interest (or something to gain) could initiate an action; instead, Scots law limited access to those interested pursuers with title, a concept that restricted suit to those with the clearest legal right to pursue the claim.[14] As a general matter, then, Scots private law ruled out third party standing for those seeking to enforce the rights of another party, or what the Scots called, following Roman law, jus tertii.[15]
Despite these ordinarily applicable standing limits, Scots law recognized an exception to the requirements of title and interest when the pursuer brought a “popular action,” or what the Scots referred to (following Roman law) as an actio popularis. The actio popularis empowered an individual to mount a claim for relief, often an action for a declaratory judgment, when the defendant (often a public body) had impinged on rights held in common by a variety of individuals.[16] None of the pursuers had a clear title to sue in cases of such widespread and somewhat diffuse injury, yet the Court of Session formulated rules enabling one or more of them to pursue the claim in order to avoid a defect of justice. The conception of the Court of Session as a court of equity, exercising powers of nobile officium in the last resort, played a prominent role in justifying such actio popularis proceedings in the eighteenth century.[17] Indeed, in working to prevent a failure of justice, the Court of Session seems to have recognized that the rules of standing applicable to private litigation must give way to allow public actions to proceed.
Third, Scots law paid particular attention to the rights of both pursuers and defenders. The insistence on title and interest to sue was framed less as a restriction on the power of the Court of Session itself than as an important protection for the rights of defenders.[18] The Scots understood that a variety of different parties could have an interest in pursuing certain claims. The Court of Session thus sought to forestall the potential unfairness that would result to defenders if forced to defend a series of lawsuitsseeking essentially the same relief. Title and interest to sue served to identify a pursuer well positioned to assert the claim in question. By according res judicata effect to that disposition, the Court of Session could ensure a single contest and a measure of repose for defenders.[19] In cases where no single pursuer could be said to enjoy clear title to sue, as with an actio popularis proceeding, Session sought a middle way that would facilitate a test of legality and afford defenders some relief from seriatim litigation.[20]
Interesting in their own rightin distinguishing civil law practicefrom that of the common law courts in England,[21]these features of Scots practicemay offer important historical and comparative lessons to students of justiciability law in the United States. American scholars have long debated the origins of standing law, dividing on the degree to which one can find elements of standing in the conceptions of judicial power with which the framers of Article III were most familiar. Some argue, by analogy to common law practice in England, that the functional equivalent of standing was embedded in the forms of action that governed private litigation.[22][23] Others observe that England also recognized public actions, including informer and relator proceedings and petitions for mandamus and other forms of prerogative writs.[24] Practice at Westminster thus represented something of a mixed bag, with both private litigation that sought redress for invasions of private interests and public actions that sought relief on behalf of a potentially more diffuse public interest.[25]
Scots practice in the eighteenth century opens an interesting new chapter in the story of standing in both public and private actions. The Scottish insistence on title and interest to sue provides an early precursor and obvious analog to the law of standing as it later developed in the courts of the United States. It thus offers some support for those who argue that standing limits may have been understood as inherent in conceptions of the judicial power familiar to the framers. Yet at the same time, Scots practice accepted the propriety of public actions in some circumstances. Recognition of the actio popularis thus provides an intriguing, if somewhat narrow, exception tothe Scots principle that pursuers must show both title and interest to sue. While the Court of Session did not routinely entertain what we moderns describe as “generalized grievances,” the Scots’ willingness to do so within specified limits offers a measure of support for some relaxation of strict standing rules in public actions. While I do not contend that the original public meaning of Article III incorporates Scottish standing constructs, I do believe that the Scots’ struggle can teach important lessons about the way supreme courts with broad equitable powers face pressure to restrict their own authority to declare the law at the instance of individual litigants.
Consider, for example, the light Scotland’s experience may shed on why the Supreme Court came to adopt more rigid rules of standing law in the first half of the twentieth century. Scholars generally agree that something changed in the 1920s and 1930s, the period during which standing law began to take root at the Supreme Court. Somewhat in contrast to accounts that emphasize progressive politics and the rise of the administrative state,[26] Professor Bellia argues that the joinder of law and equity and the recognition of a single form of action under the 1938 Federal Rules of Civil Procedure may explain why federal courts were obliged to fashion standing law limits.[27] Such limits would, on Bellia’s account, do the work once performed by common law pleading forms.[28]
By emphasizing the importance of articulating judicial limits on an otherwise far-reaching equitable power to declare the law, the Scots experience extends Bellia’s account by identifyingother factors that may have hastened the rise of standing law in the United States. Two changes in particular brought practice in the United States more closely into line with that in Scotland: the judicialrecognition inEx parte Youngof a party’s right to enjoin threatened violations of federal law and the legislative recognition of the declaratory judgment action.[29] Both forms of litigation freed the federal courts from the common law writ and code-pleading systems and the limits such pleading systems had necessarily imposed on the right of plaintiffs to pursue judicial remedies. Both formsarrived in the first half of the twentieth century, thereby setting the stage forthe Court’s use of standing as a restriction on access to judicial review.Well-known as a general matter, these two developments have not figured prominently in discussions of the rise of standing law.[30]
Finally, Scots law may contribute a new understanding of the functional need, and justification, for threshold standing limits. By limiting litigation to pursuers with title and interest to sue, the Scots self-consciously sought to protect the right of defenders to repose under the doctrine of res judicata. For the invasion of a single right, the Scots held that defenders should face but a single suit or claim. Those with second-best claims, that is, those with an interest but without formal title to sue, might harass defenders with repeated litigation if permitted to do so.[31] To forestall such seriatim litigation, the Court of Session ascribed preclusive effect to the first merits dispositionreached in an action brought by a party with title and interest to sue. Two corollaries followed. First, defenders could invoke res judicata as a bar to a second proceeding only when an unsuccessful first action had been brought by a party with title and interest to sue.[32] Second, defenders could seek dismissal of the first proceeding if it were being prosecuted by a party who lacked title and interest to sue; otherwise, defenders would face the prospect of a second proceeding brought by the proper party.[33] These preclusion roots may help to explain why the inquiry into title and interest was viewed as a threshold matter and why a dismissal for lack of title and interest was not viewed as an adjudication of the merits of the underlying claim.
The preclusion foundations of Scottish standing law suggest the importance of making an inquiry into the representative adequacy of plaintiffs in public law actions and provide a possible a framework for the development of a new body of judge-made standing law. The Court’s recent Lexmark decision, proclaiming an end to prudential standing doctrine, seems to suggest that standing law can legitimately operate only as an interpretation of constitutional or statutory law.[34] But the Court has also recognized the legitimacy, indeed the primacy, of judge-made preclusion law.[35] A federal court might sensibly follow the Scottish example in deploying some features of standing law as part of a preliminary inquiry into the preclusive effects of its judgments without attributing the ultimate standing decision to either statutory or constitutional compulsion. But as the elements of Scottish standing law explored in the next part confirm, the task of working out a truly integrated law of standing, representational adequacy, and preclusion in public actionsmay require legislative assistance.
II.Standing in the Court of Session
As a prelude to an assessment of the standing law of Scotland, this Part beginswith a brief overview ofScottish institutions and a description of the structure of Scottish court system and its supreme court, the Courtof Session. In next describing the Scots law of standing, this Part focuses on developments in the eighteenth century and on the way standing doctrine was described by leading treatises of the period.The descriptions come from sources that circulated as the common currency of well-read lawyers of the period, such as the Historical Law Tractsof Lord Kames and the works of Scotland’s leading institutional writers.[36] We also canvas some of the decisional law of the period.
It’s worth posing a question at the outset. Scotland was alone among English speaking countries in imposing an explicit threshold standing requirement in the eighteenth century. In contrast to Scottish experience, the English had no comparable doctrine. Although he had combed through the English reports with some care, Louis Jaffe reported that he “encountered no case before 1807” in which the “standing of the plaintiff is mooted.”[37] Similarly, scholars tend to agree that the early American cases fail to articulate a formal, threshold body of standing law, although some report evidence of standing-like concerns by the nineteenth century. Indeed, most American scholars trace the rise of standing law to the late nineteenth and early twentieth centuries, just as Jaffe reports that the English decisions began to take standing questions seriously in the 1890s.[38] What led the Scots to confront and resolve issues of standing so long before their cousins to the south and west?
A.Scotland and its Court of Session
Although the Scots had a supreme court as early as the fifteenth century,[39] many accounts trace the origins of the Court of Session to 1532.[40] Session’s jurisdiction extended to a range of original proceedings and included the power to exercise appellate review over the decisions such inferior tribunals as the sheriff’s courts, justices of the peace, and the ecclesiastical and admiralty courts.[41] While forms of appellate review varied, Session often deployed home-grown remedies such as reduction, advocation, and suspension to maintain uniformity of decision and correct errors in lower courts. As Lord Kames and others described these modes of review, they operated something like the English prerogative writs.[42] With an advocation, Session would remove an action from a lower court for decision by a higher tribunal (often itself) in somewhat the same way that King’s Bench in England would remove matters from lower courts through the writ of certiorari. Suspension and reduction resembled the English writ of prohibition; the reduction would set aside the decree of a lower court while the suspension would prevent the execution of the decree during the pendency of review.[43]