Two from James Pfander on Standing
James E. Pfander (Northwestern University School of Law) has posted Standing to Sue: Lessons from Scotland's Actio Popularis (Duke Law Journal, forthcoming) on SSRN. Here is the 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.
(Via Dan Ernst at Legal History Blog).
Also, Professor Pfander and Emily K. Damrau (Northwestern University School of Law JD '15) have posted A Non-Contentious Account of Article III's Domestic Relations Exception (Notre Dame Law Review, forthcoming) on SSRN. Here is the abstract:
Scholars and jurists have long debated the origins and current scope of the so-called domestic relations exception to Article III. Rooted in the perception that certain family law matters lie beyond the power of the federal courts, the exception was first articulated in the nineteenth century decisional law of the Supreme Court and has perplexed observers ever since. Scholarly debate continues, despite the Court’s twentieth-century decision to place the exception firmly on statutory grounds in an effort to limit its potentially disruptive force.
This Essay offers a novel, historically grounded account of the domestic relations exception, connecting its origins to the Article III distinction between “cases” and “controversies.” Much domestic relations law fails to present a “controversy” within the meaning of Article III; the consensual nature of many status-altering acts (marriage, consensual divorce, adoption) forecloses a federal dispute-resolution role. But when federal courts hear “cases” arising under federal law, they have full power to exercise both contentious and (what Roman and civil lawyers refer to as) non-contentious jurisdiction. Our non-contentious account explains a range of puzzles, including why Article III courts can issue decrees at the core of the domestic relations exception when the matter at hand implicates federal law.
Professor Pfander absolutely owns the field of the history of standing, and people who think that modern standing law has a sound basis in the Constitution's original meaning need to pay a lot of attention to him.