Academic journal article Duke Environmental Law & Policy Forum

What If Justice Scalia Took History and the Rule of Law Seriously?

Academic journal article Duke Environmental Law & Policy Forum

What If Justice Scalia Took History and the Rule of Law Seriously?

Article excerpt

The most appealing justifications for current standing law are that it preserves the separation of powers and protects the democratic process from the countermajoritarian intrusion of judicial review.(1) Both rationales, however, misconceive the relation between our core conceptions of democracy and the rule of law. Frank Michelman's recent work struggles with the paradox of constitutional democracy, in which self-rule is pitted against the rule of law as pronounced by an unelected and unaccountable judiciary.(2) Though we cannot escape this conundrum at the conceptual level, it can nevertheless be dissolved at the level of practice. The place where the conflict between democracy and the role of law evaporates is the citizen suit, exemplified in its modern form by Section 1365 of the Clean Water Act.(3) From this perspective, the Supreme Court's recent decision in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.(4) is more than a victory for the environment and those who are concerned about it--though that, too, is of the utmost importance. In heralding what appears to be a relative return to sanity in the law of standing, the decision in Laidlaw strikes a profound blow for a conception of democracy that is as radical as it is traditional.

Not everyone sees it that way, of course. In his dissent in Laidlaw, Justice Scalia expresses concern that the majority's decision holds "grave implications for democratic governance."(5) His fear is that the Court's "new" and "revolutionary" approach to standing "will permit the entire body of public civil penalties to be handed over to enforcement by private interests."(6) One must pause a moment to marvel at the irony: Private enforcement of civil penalties--as Justice Scalia has since conceded--has been a staple of Anglo-American jurisprudence since the fourteenth century.(7) These "popular actions," Blackstone noted, "were given to the people in general."(8) Both before the American Revolution and after, the so-called informer or qui tam actions enabled the ordinary citizen to "see that a public offence be properly pursued and punished, and that a public grievance be remedied."(9) Indeed, in 1805, Chief Justice Marshall characterized private enforcement as the norm rather than the exception: "Almost every fine or forfeiture under a penal statute, may be recovered by an action of debt, as well as by information."(10)

In his majority opinion in Lujan v. Defenders of Wildlife,(11) Justice Scalia offhandedly dismissed the informer action as the "unusual case in which Congress has created a concrete private interest in the outcome of a suit against a private party for the Government's benefit, by providing a cash bounty for the victorious plaintiff."(12) Let us put aside for the moment the fact that some informer statutes did not allow the litigant to share in the bounty. (Most did.) Put aside, too, the fact that the informer action was not the only means by which a plaintiff could sue to vindicate issues of public rights and duties without having to demonstrate a personal stake in the outcome: under the English relator practice, as followed by nineteenth century American courts, any person might seek the prerogative writs of mandamus, prohibition, and quo warranto to redress the legal injuries of "refusal or neglect of justice."(13) Put aside, as well, the fact that the Supreme Court, in 1875, specifically approved of this public rights practice in a federal mandamus case against the Union Pacific--upholding the relators' right to sue to enforce a statutory duty despite the railroad's argument that they "had no interest other than such as belonged to others ... and the duty they seek to enforce by the writ is a duty to the public generally."(14) Rather, consider the fact that the very existence of these forms of action undercuts the central notion of modern standing law (as articulated in cases running from Schlesinger v. Reservists Committee to Stop the War(15) and United States v. …

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