Standing to Sue: Lessons from Scotland's Actio Popularis

72 Pages Posted: 21 Mar 2016 Last revised: 15 Jun 2017

Date Written: March 18, 2016

Abstract

Much of what we think we know about the 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 in 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 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 imposed standing limits in private litigation – or what the courts 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 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, draws upon Scottish ideas to interrogate the rules of standing in the United States, and extends the growing literature on influential alternatives to the common law.

Keywords: standing to sue, Article III judicial power, public law litigation, civil and roman law

JEL Classification: K10, K30

Suggested Citation

Pfander, James E., Standing to Sue: Lessons from Scotland's Actio Popularis (March 18, 2016). 66 Duke Law Journal 1493 (2017); Northwestern Public Law Research Paper No. 16-07. Available at SSRN: https://ssrn.com/abstract=2750550 or http://dx.doi.org/10.2139/ssrn.2750550

James E. Pfander (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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