[*1394] III. THE ORIGINS OF THE PUBLIC RIGHTS MODEL

 

 [*1394]  III. THE ORIGINS OF THE PUBLIC RIGHTS MODEL

These ... are my tools of trade. A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these he may venture to call himself an architect. n104

A. Of Framers and Relators, Informers and the Forms of Action

A famous Holmesian dictum has it that "a page of history is worth a volume of logic." n105 The history of standing suggests, however, that history without logic can be easily mislaid. In this section, we will rediscover that history and reconstruct its logic.

The modern doctrine of standing often is justified as grounded in a historical understanding of the language of article III respecting "case[s] or controvers[ies]" or "the judicial Power of the United States...." n106 Justice Frankfurter argued that the provisions of article III:

mean that a court will not decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was, generally speaking, the business of the Colonial courts and the courts of Westminster when the Constitution was framed. n107

Recent decisions continue to reflect this syllogism. n108 Yet. the English, colonial, and post-constitutional practices suggest that the contemporaneous understanding of the "case or controversy" clause considered as  [*1395]  justiciable actions concerning general governmental unlawfulness, even in the absence of injury to any specific person, and even when prosecuted by any common citizen with information about the alleged illegality. In other words, there was a public rights model structured in terms of alternative schemata.

At the time of the Framers, the concept of justiciability did not embrace notions of standing as we think about them today. It was necessary that a legal question "assume such a form that the judicial power is capable of acting on it." n109 But the Court did not express that concept in terms of "standing" or the essentials of a private cause of action. Rather, it expressed it in formalistic terms, in what I shall call the syllogism of the forms: "[Judicial] power is capable of acting only when the subject is submitted to it, by a party who asserts his rights in the form prescribed by law. It then becomes a case...." n110 This understanding of justiciability predominated until the middle of the twentieth century, from Marshall n111 to Story n112 to Field n113 to Day n114 to Taft n115 to Brandeis. n116 What a court looked for was whether the matter before it fit one of the recognized forms of action.

This justiciability standard reflected the mediating influence of the common law forms of actions on the procedure and substance of private rights. Law was that body of rules that defined the rights of citizens and, concurrently and coextensively, provided a remedy to the injured party. The forms of action stood as the gatekeepers of this system. Thus Blackstone could speak simultaneously of "the several injuries  [*1396]  cognizable by the courts of common law, with the respective remedies applicable to each particular injury," n117 and of the principle "that where there is a legal right there is also a legal remedy, by suit or action at law, whenever that right is invaded." n118 Based upon these principles, Chief Justice Marshall could draw the more extensive conclusion that "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." n119 Under the eighteenth century common law, rights were synonymous with remedies, n120 remedies were synonymous with the forms of action, and, by algebraic logic, the forms of action were synonymous with the concept of redressable (that is, cognizable) injuries. In this traditional doctrine, one can see reflected the mirror image quality of the remedial and causal metaphors of the private rights model.

One might infer from this that the practice at the time of the Framers was consistent with the private rights model of the "case and controversy" requirement and modern standing law's focus on "injury-in-fact." Although the common law forms of action dominated the legal process and jurisprudential thought of the time, they did not exhaust it. n121 There were other matters of "such a form that the judicial power is capable of acting on" them. n122 Characterized neither by the private rights model of the seven common law forms of action nor by the "injury-in-fact" paradigm of modern standing doctrine, these matters took forms astonishingly similar to the "standingless" public action or "private attorney general" model that modern standing law is designed to thwart.

Prior to the Revolution, other writs as well as equity practices brought before the courts cases in which the plaintiff had no personal interest or "injury-in-fact." Under the English practice, "standingless" suits against illegal governmental action could be brought via the prerogative writs of mandamus, prohibition, and certiorari issued by the King's Bench. n123 The jurisdiction of King's Bench to superintend local governmental authorities by means of these writs developed at the  [*1397]  close of the seventeenth century. n124

The very availability of these writs as means to control governmental action belies the private rights model; these procedural devices were designed to restrain unlawful or abusive action by lower courts or public agencies, especially actions that were beyond their jurisdiction. n125 These writs fit easily within the jurisprudential thought of the time. n126 As Blackstone explained it, mandamus and prohibition redressed the legal injuries of "refusal or neglect of justice" n127 and "encroachment of jurisdiction," n128 respectively. Neither of these concepts entails a view in which only individuals can be rights-holders. To the contrary, "neglect of justice" and "encroachment of jurisdiction" are essentially communal concerns. n129 And, if Blackstone's definitions of these "injuries" sound strange to modern ears, it is because today's jurisprudence treats "injury-in-fact" in literalist terms. But the common law usage of the term "injury" was plainly metaphoric. n130 The term "injury" referred to "any infringement of the rights of another ... for which an action lies at law." n131 Legal injuries were conceptualized in terms of the experience of physical injury, but the former was not confused with the latter. It is only in this sense that there could be a notion of damnum absque injuria — that is, damage without cognizable legal injury.

Unlike the common law writs, the prerogative writs were not structured in terms of the source-path-goal schema. Rather, the subject matter of the prerogative writs was understood in terms of the part-whole schema: The King's Bench acted on behalf of the King himself (the  [*1398]  whole of the government) to superintend lower organs (the parts) rather as the head rules the body. n132 Indeed, exactly this metaphor was used by the courts, which described mandamus as "one of the flowers of the crown...." n133

The private rights model entails two source-path-goal schemata, one to structure the subject matter of and another to structure the adjudicative process invoked by the model. Similarly, the public rights model embodied in the prerogative writs entailed a second use of the part-whole schema to structure the adjudicative process. Any part (that is, citizen) could invoke the power of the whole to secure observance of the law; any part could stand for the whole, a legal metonymy. This model therefore required neither injury nor "standing." At common law, these writs were available by suit of a stranger. n134 The citizen-plaintiff's lack of a direct, personal interest did not require that the court ignore the plaintiff's petition. Rather, because these writs invoked the discretionary authority of the royal prerogative, the court retained the power to adjust or withhold the remedy. n135

The English relator practice, which applied also in equity, provided a formalized procedure for this part-whole metonymy. On issues of public rights or public duties, where the English attorney general could sue on behalf of the Crown, any person might seek one of the prerogative writs or bring a suit for an injunction in the name of the attorney general. The litigant, or relator, needed only to obtain the fiat or permission of the attorney general to use his name; such permission was  [*1399]  granted as a matter of course. Once permission was obtained, the relator prosecuted the action at his or her own expense and without direction from the attorney general. n136 The attorney general, however, was not a necessary party — that is, his fiat was not needed — "where the interference with the public right is at the same time an interference with some private right or is a breach of some statutory provision for the protection of the plaintiff." n137 This latter rule demonstrates that the relator practice clearly contemplated actions by those without a direct stake in the controversy. Thus, as a practical and historical matter, the relator's action extended the availability of judicial remedies to persons not immediately affected by the challenged action by allowing any part to invoke the name and the power of the whole and represent its interests before the courts.

These English versions of the public rights model were familiar to the Framers as "the business of the Colonial courts and the courts of Westminster...." n138 Hayburn's Case n139 illustrates that, although the specific procedural form of the relators' practice did not survive in America, the acceptability of the part-whole schema of the public rights model did survive.

In Hayburn's Case, Attorney General Randolph filed in the Supreme Court a petition for a writ of mandamus to the federal circuit court for Pennsylvania to enforce a congressional statute providing disability pensions to Revolutionary War veterans. n140 The statute empowered the federal circuit courts (which were the superior trial courts) to serve as commissions, determining the amount of the pensions and certifying those determinations to the secretary of war. The secretary of war, however, could disallow a pension and refer the case to Congress. The circuit courts refused to accept these cases.

The Attorney General first sought mandamus in his own behalf, ex officio, to enforce the statutory scheme. He argued that section 35 of the Judiciary Act of 1789 n141 authorized the attorney general to act in this manner. n142 But, only a few months before the argument in Hayburn's Case, Congress had rejected an amendment to the Process Act of 1792, n143 proposed by Randolph, that would have explicitly authorized such actions. n144 A divided Court denied the ex officio motion. n145 Rayburn's  [*1400]  response was to seek mandamus on behalf of Hayburn, an interested party. n146

A majority of the members of the Court, while sitting in the circuit courts, had expressed the view that the exercise of "judicial power" contemplated by article III was inconsistent with a power to revise the judgment reserved to either the legislature or an executive officer. n147 Hayburn's Case was rendered moot by an amendment to the pension statute; today it stands for the principle expressed by the Justices while sitting in the circuit courts below. But the only issue the Court actually considered in Hayburn's Case was whether the attorney general had the power to sue ex officio. The Court's deadlock on this issue eliminated the availability of the English relator action: The relator could hardly invoke the "standing" of the attorney general if the attorney general had none.

But Hayburn's Case did not affect the viability of adjudicatory models premised on the part-whole schema — that is, it did not reflect a rejection of the English practice treating such cases as justiciable. Rather, the concern in Hayburn's Case was with the proper definition of the whole in a constitutional system of separated powers. The English practice upon which Randolph relied presupposed a sovereign with plenary power to enforce its laws through its attorney general and its courts. It was this premise that the Court did not accept. The executive was no longer the "head" of the body politic, and the federal courts, unlike the King's Bench, could no longer assume that they were free to speak for the whole. Rather, both organs were limited to the exercise of powers given either by the Constitution or, within constitutional limits, by the Congress. n148 Congress was the branch most representative of the American sovereign — the people. It was, therefore, the closest American equivalent to society's "head."

Different institutional premises, rather than doubts about justiciability, led to the demise of the relator form of action in the federal courts. Indeed, Hayburn's Case affirmed another adjudicatory model premised on the part-whole schema. That is, if the Court had intended to require that plaintiffs must have personal injuries in order to establish  [*1401]  a "case or controversy," then it would have dismissed Randolph's ex officio action at the outset for want of justiciability. Similarly, it would have held the case unjusticiable even after Randolph declared that he was suing on behalf of another.

The Court did not dismiss Randolph's actions for lack of justiciability because it did not repudiate the essence of the public rights model. Today we would see Randolph's actions as an instance of jus tertii — raising the rights of third parties — or what I will call a representational model. The Hayburn Court accepted Randolph's invocation of a representational model, premised on a part-whole structure, that did not require allegation of specific, personal injury: Randolph, a representative of the whole, was allowed to proceed with the mandamus petition on behalf of Hayburn, a part. n149

Although Hayburn's Case undermined the institutional premises of the relator action, American courts continued to entertain similar suits premised on a part-whole schema. Those courts familiar with the English precedents invoked them to allow citizens without particularized injury or interest to question governmental authority. In State v. Justices of Middlesex, n150 the New Jersey Supreme Court invoked the theory that jurisdiction lay to redress what Blackstone called "neglect of justice" n151 to hold that certiorari was available to challenge the conduct of an election. The court found support for its conclusion in the writings of the English jurists, including Coke n152 and Hawkins, who observed that "whatever crime is manifestly against the publick good, it comes within the conusance of this court [the King's Bench], though it do not directly injure any particular person...." n153 The New Jersey court indicated that its discretionary power of certiorari "is sometimes exercised before an injury actually accrues to any one, by issuing a mandamus...." n154 The Court justified this power in communitarian terms:

Where the injury is extensive, and involves any considerable portion of the community, it is better to take up the business in gross.... The reason is [that] the power is necessary for the preservation of the peace of the community; — and with what colour can it be pretended that this court, whose duty it emphatically is to take care that justice is done to  [*1402]  every one, has no power to protect the interests, and redress the wrongs of an entire county. n155

Although Middlesex was apparently reversed on appeal "before governor and council," n156 its statement of the received common law concerning the prerogative writs nevertheless reflected a great number of the American mandamus decisions. In County Commissioners v. People ex rel. Metz, n157 the Illinois Supreme Court rejected, in language similar to, but directly contradicting, modern standing doctrine, n158 the argument that the plaintiff had not shown sufficient interest to maintain the suit.

The question, who shall be the relator ... depends upon the object to be attained by the writ. Where the remedy is resorted to for the purpose of enforcing a private right, the person interested in having the right enforced, must become the relator.... A stranger is not permitted officiously to interfere, and sue out a mandamus in a matter of private concern. But where the object is the enforcement of a public right, the People are regarded as the real party, and the relator need not show that he has any legal interest in the result. It is enough that he is interested, as a citizen, in having the laws executed, and the right in question enforced.... No doubt is entertained of the right of Metz to become the relator, and pursue this remedy, [sic] The object of the suit is not a matter of individual interest, but of public concern. Any citizen of the county, especially of the locality interested in having the improvement prosecuted, could become the relator, and obtain the mandamus. n159

Other courts emphasized that citizens have a duty, as well as a right, to take legal action when a public right is violated or a public grievance committed. n160

Even without the formal procedural structure of the English relator practice, these American decisions continued to employ the part-whole structure of the common law mandamus action. Metz thus justified the invocation of the court's jurisdiction by a citizen interested in having the laws executed on the ground that there is a live controversy with the  [*1403]  people who are regarded as the real party. n161 There was no requirement of injury-in-fact or typicality as with the representation of the interests of a class in the modern class action. Given the part-whole structure of the relationship between the parties, I will refer to this original "standingless" model as a constituent model. n162

State practice was far from uniform. By the middle of the nineteenth century, many courts read the English cases as requiring the relator to allege a private right. n163 These courts concluded that, in cases involving public rights, only state officers such as the attorney general or district attorney could sue. n164 Elsewhere, courts and litigants borrowed the form of the relator action, n165 but altered the substance. n166 These cases reflect certain legal and historical misconceptions, n167 and,  [*1404]  in their period, were perceived by the United States Supreme Court as minority views.

Professor Jaffe documented the development of mandamus in the state courts. n168 Yet the approval of the constituent model in the federal courts has gone virtually unnoticed. In 1875, in Union Pacific Railroad v. Hall, n169 the United States Supreme Court explicitly endorsed Metz and declared: "There is ... a decided preponderance of American authority in favor of the doctrine, that private persons may move for a mandamus to enforce a public duty, not due to the government as such...." n170

In Hall, the Supreme Court considered a petition for mandamus against the federally chartered railroad brought by merchants seeking to require the railroad to maintain a line over the Missouri River that ran from Iowa to Nebraska. As the Court characterized it, these merchants "had no interest other than such as belonged to others" and sought only to enforce "a duty to the public generally." n171 The relevant statute provided only that the circuit courts "shall have jurisdiction to hear and determine all cases of mandamus to compel said Union Pacific Railroad Company to operate its road as required by law." n172 Union Pacific challenged the sufficiency of the plaintiffs' interest to maintain the petition. The Court did not discuss this challenge in justiciability or constitutional terms. Rather, it first upheld Mr. Hall's claim on the merits and then, at the close of the opinion, upheld his right as a member of the public to petition for mandamus on a matter of public right. Basing its judgment on English n173 and American precedent,  [*1405]  the Court concluded that the petition was proper and affirmed the decision below granting the writ.

With the exception of cases like Hall, the federal mandamus practice remained underdeveloped. The reason is that the Court had systematically rejected general jurisdiction over mandamus actions in the federal courts in a series of three early nineteenth century cases. In Marbury v. Madison, n174 the Court held that Congress could not vest mandamus jurisdiction in the Supreme Court because it was an original action not provided for in article III. Ten years later, in McIntire v. Wood, n175 the Court held that the All Writs Act n176 was not intended to confer general mandamus powers on the federal courts, but only to authorize mandamus in support of jurisdiction otherwise obtained.

These decisions were reaffirmed in Kendall v. United States ex rel. Stokes. n177 There, the Court explained that the federal courts had neither residual common law authority to issue the writ nor sovereign prerogative as in England. n178 The federal courts, therefore, could only issue the writ when Congress provided mandamus jurisdiction. But the Court did not question that jurisdiction when Congress provided it; the Court merely invoked the syllogism of the forms. "That the proceeding on a mandamus is a case within the meaning of the act of congress, has been too often recognised in this court to require any particular notice. It is an action or suit brought in a court of justice, asserting a right; and is prosecuted according to the forms of judicial proceedings." n179 The Court recognized jurisdiction over mandamus only in the District of Columbia Circuit Court on the ground that the congressional statute organizing the District adopted the common law of Maryland and, therefore, adopted as well its common law jurisdiction over mandamus. n180

One might conclude that the Court engaged in this extended guerilla warfare against mandamus jurisdiction precisely because it feared a general judicial power to superintend government. But this argument undermines the historical basis of modern standing doctrine. Had it been available, the standing concept would have solved the Court's fears. It certainly would have made Kendall an easy case. Kendall was a  [*1406]  case of private right brought by four postmasters to compel the postmaster-general to pay their salaries. n181 Instead of justifying the exercise of judicial power on the theory that Kendall was a case of private rights, the Court engaged in a lengthy discourse on mandamus under the new constitutional system and justified the specific invocation of the judicial power in this mandamus case in a roundabout way. n182 In Hall, on the other hand, the Court accepted jurisdiction even though the plaintiff lacked a personal, private interest. n183 The Court adjudicated the mandamus petition even though it was premised on the part-whole schema of the constituent model; it did so without question because Congress had explicitly conferred the jurisdiction.

Yet another form of public action thrived in America under the Constitution. "Statutes providing for actions by a common informer, who himself had no interest whatever in the controversy other than that given by statute, had been in existence for hundreds of years in England, and in this country ever since the foundation of our Government." n184 These were called "popular actions because they were given to the people in general." n185

An English statute of 1424, for example, imposed a penalty on customshouse officials who embezzled duties paid by merchants. n186 Any informer, unrelated to the transaction, could sue to collect the trebled penalties provided by the statute; the informer sued in his own behalf and on behalf of the King. If successful, the informer kept a third of the judgment. This device was used in the context of regulatory or criminal enforcement and was also employed to enforce legal obligations on governmental officers that did not otherwise give rise to private rights. In a later statute, Parliament provided that an informer could collect a penalty of 500 pounds from an officer who neglected to take the required oath of allegiance to the government. n187

The full extent of the popularity and use of informers' statutes in America has not been documented previously. n188 The colonies and the states employed informers' statutes in a wide variety of cases, including the enforcement of regulatory statutes and morals legislation. n189 These  [*1407]  statutes provided a common mechanism to regulate, by judicial sanction, governmental officials where there was likely to be no aggrieved party with a private cause of action. One of the earliest statutes was adopted in New York in 1692. Under a statute "for the restraining and punishing of Privateers and Pirates," all commissioned officers within the colony were required to arrest or kill any pirates within their jurisdiction. Any informer could enforce this duty by suit to collect a statutory penalty. n190 An early New Hampshire statute required the officials in each town to erect and maintain a pound for cattle; and it made the obligation enforceable by the public at large through the medium of the informer's suit. n191

The Framers, in their roles as members of the first Congress, passed legislation both creating and facilitating informers' suits. The first Congress was in session only two months when it passed a customs-house informer statute; it subsequently provided federal jurisdiction over informer suits in the Judiciary Act of 1789. n192 These actions suggest that the Framers did not view the "case or controversy" requirement of article III as limiting such "popular actions" as informers'  [*1408]  suits. n193 The second Congress implicitly approved the practice of informers' suits, providing rules for the award of costs in cases brought by "any informer or plaintiff on a penal statute to whose benefit the penalty or any part thereof if recovered is directed by law...." n194 And, in 1794, the third Congress created informers' suits to enforce its prohibitions against the slave trade. n195 Subsequent Congresses, from 1834 n196 to 1986 n197 continued to use informers' suits for the enforcement of rights accruing to the public at large. n198

The informer's suit employed multiple cognitive models. Informers' suits like those provided for in New York and New Hampshire used the constituent model with a simple part-whole structure as in mandamus: Any member of the body politic with the relevant information was empowered to sue to vindicate the policy choice made by the whole in passing the underlying regulatory law. Any member of the community could enforce the collection of taxes, the provision of police protection, or the maintenance of an animal pound once the community had so determined.

Other informers' suits like those federal actions regulating customs practices, applied more complex models. These statutes presupposed an injury to someone, who would also have a private cause of action modelled on the remedial source-path-goal schema. These statutes nevertheless authorized suit by a stranger with information, allowing the informer to act in a representational capacity. Thus, these informers' actions were examples of a representational model — they were structured  [*1409]  in terms of the source-path-goal schema of an ordinary private cause of action n199 and a link schema. One link was the informer's information about the injury to the actual victim. n200 The other link was provided by the part-whole schema: One part could speak for the other since each was a constituent of one whole.

Suits by those without personal injury who were acting as representatives of others were not viewed as raising constitutional problems under article III. In Adams, qui tam, v. Woods, n201 Chief Justice Marshall expressed the view that informers' suits were common and ordinary: "Almost every fine or forfeiture under a penal statute, may be recovered by an action of debt, as well as by information...." n202 The Court never questioned the plaintiffs' "standing" in three subsequent informers' actions that it decided in 1885, 1905, and 1943. n203 On the basis of these cases, Justice Harlan, dissenting in Flast v. Cohen, conceded that suits brought by nontraditional plaintiffs — that is, plaintiffs without injury-in-fact — were not barred by article III. n204

B. Cognitive Structure, Prototype Effects, and the Public Rights Model

The public rights model coexisted comfortably with the conceptual system of nineteenth century legal thought. It was in many ways traditional in its structure, even though premised on alternative schemata. Because the public rights model overlapped structurally with the private rights model, however, it seemed like a variant of the latter model. As such, it was vulnerable to the extreme prototype effects discussed in Section II above.

In his classic article on modern public law litigation, n205 Professor Chayes described the traditional, private rights model in terms of five "defining features." He described traditional litigation as bipolar, retrospective, self-contained, party-initiated and controlled, and characterized by an approach that treats right and remedy as interdependent. n206 In contrast, Chayes described the emerging public  [*1410]  law model as flexible and sprawling in shape, predictive in its fact-finding and prospective in its approach to remedy, judicially managed and activist rather than party controlled, and characterized by a dispute over the operation of public policy rather than over private right. n207

In these aspects, at least, the public rights models of mandamus and of the informer's action that we have considered had more in common with the traditional version of the private rights model than with the emerging public law model described by Chayes. These nineteenth century public rights models were bipolar, initiated by a single citizen against an officer of the government. The litigation was often retrospective; in any event, it was well-bounded by a specific duty or omission and its subject matter concerned quite precise "consequences for the legal relations of the parties." n208 The suit was entirely party-initiated and controlled. Right and remedy were interdependent, controlled no less by the writ system than were the common law forms of action. n209 The lawsuit was only partially self-contained in the sense employed by Chayes: The entry of judgment ended the court's involvement, but its impact was not confined to the particular litigant who prosecuted the action. Rather, it affected the "real party in interest": the entire community. n210

These similarities between the original public and private rights models reflect a common experiential grounding by means of the conventional metaphor rational argument is war. n211 In our culture, we conceptualize rational arguments in terms of basic physical combat: "There is still a position to be established and defended, you can win or lose, you have an opponent whose position you attack and try to destroy and whose argument you try to shoot down. If you are completely successful, you can wipe him out." n212 This same set of  [*1411]  conceptualizations governs in legal matters. n213 Thus, Professor Chayes described traditional litigation as "a contest between two individuals or at least two unitary interests, diametrically opposed, to be decided on a winner-take-all-basis." n214 Here we have a reference to the array of opposing forces in battle and the principle of "to the victor belong the spoils" that have characterized warfare throughout much of human history.

Our use of the rational argument is war metaphor to organize our models of litigation is not arbitrary or accidental, but rather is motivated by human experience. Physical combat and rational argument are both means of obtaining desired ends such as food, property, status, and control. Until the development of sophisticated weaponry in modern times, even organized combat was inherently hand-to-hand and one-on-one. The bipolar, individualized nature of the private rights model thus reflects directly the historical experience of combat.

The public rights models of the nineteenth century retained this bipolar structure by employing a representational model, a metonymy premised on the part-whole schema and motivated by the battle metaphor. Opposing forces sometimes settle their differences through the combat of champions subject to a "winner-take-all" agreement. n215 Representation of the whole (the army) by the part (the champion) avoided greater bloodshed. In an even more civilized version, the opposing forces sent emissaries to avoid fighting via a diplomacy in which reason replaced physical combat. The constituent model of mandamus mimicked this model in the legal sphere. In cases like Hall or Metz, a single member of the public adjudicated the concerns of many. This model was an advance over the inefficient and disruptive effects of a multiplicity of private suits. The role of the courts was to coordinate and vindicate the greater interests of the whole, n216 by employing the  [*1412]  part-whole schema of mandamus.

The rational argument is war metaphor also accounts for the radical prototype effect in our thinking about justiciability. Warfare is a natural source domain for the source-path-goal metaphor. Whatever the purpose of the fight, it involves advancing on the enemy's position and trying to take it. Structuring rational argument metaphorically as we understand battle, we employ a source-path-goal schema in our conceptualization of argument. Adjudication involves rational argument and is one kind of human purposive endeavors. It is, therefore, naturally conceptualized in terms of a source-path-goal schema. Adjudicatory models premised on a part-whole schema, like mandamus, are ultimately crowded out of our concept of justiciable controversies.

As such, adjudication is a radial concept. All of its submodels share the core source-path-goal schemata of arguments and purposes. The causal and remedial source-path-goal metaphors of the private rights model and the part-whole and link metaphors of the public rights models radiate from this core. The private rights model seems, therefore, to be more central to the concept of adjudication — a coherence prototype effect. Thus, the remedial source-path-goal metaphor of the private rights model is seen as the primary case, or prototype, of adjudication. In comparison, the public rights model doesn't quite seem to fit; it seems "of a peculiar and eccentrical nature." n217

As a variant of this prototypical structure, public rights litigation was an intermediate category between private law disputes, on the one hand, and politics, on the other. This was reflected in the substantive, procedural, and jurisdictional aspects of public rights law. Substantively, the public rights law occupied an intermediate status between the realm of inviolable vested rights and political discretion. It concerned affairs of the whole n218 such as public roads, n219 navigable rivers, n220  [*1413]  railroads, n221 morals legislation, n222 and the performance of public officers. n223 But it included only those matters that could be governed by legal reason and the constraints of the "right and remedy" formulation. Mandamus thus excluded from its purview public matters that involved discretion, n224 leaving such matters to the political process. n225 Moreover, public rights matters were more vulnerable than were private suits to the intervention of politics: Legitimate concerted actions of the whole (subsequent legislation, for example) could defease the public right asserted by the litigant, even during the course of the lawsuit. n226

Procedurally, the models of access for raising claims of public right allowed individuals to command the attention of the law, as in the private rights model. But, as in the political sphere, these models required no personalized injury peculiar to the plaintiff. Jurisdictionally, the authority to consider matters of public right was understood neither as inherently judicial nor as nonjusticiable. Rather, the question of justiciability was left to the discretion of Congress, as in mandamus cases like Kendall and Hall. n227

The public rights concept filled an important social and legal need in the eighteenth and early nineteenth centuries. During this period, the Anglo-American governmental structures had yet to develop the large scale, bureaucratic organizations that characterize our modern governments. Thus, in England, most criminal prosecutions were brought by the victims themselves, in their own name and in the name  [*1414]  of the Crown. n228 Similarly, local governmental action was often the bailiwick of a quasi-judicial board of commissioners, as in England, n229 or the local circuit court, as in the Colonies. n230 The public rights model provided a vehicle for direct participation by the citizenry that was not available in any other manner.

Part of the explanation of the demise of the public rights model lies in its declining social and political utility in the mid-nineteenth century. As public agencies such as district and county attorneys were established, the need decreased for private attorneys general. This was reflected in the 1840s and '50s by those courts which held that only the public officers could bring public rights suits. n231 The increased desuetude of the public rights model resulting from the gradual expansion of these public agencies, coupled with the cognitive eclipse of the model as a result of the extreme prototype effects described above, led to the almost total loss of the public rights model from modern legal awareness.

The intermediate legal status of the public rights model explains three common anachronisms in current legal scholarship that are a function both of our reading of nineteenth century material through the lens of twentieth century concepts n232 and of the phenomenon of prototype effects. The first anachronism is the now conventional reading of Murray's Lessee v. Hoboken Land Improvement Co. n233 as a discussion of the power of Congress to assign certain matters — designated "public rights" — to article I tribunals. n234

 [*1415]  When viewed in light of the new historical evidence presented above, however, it becomes clear that Murray's Lessee explicates instead the intermediate status of the public rights model. On the page before the passage that is cited as referring to article I Tribunals, Justice Curtis explained that:

[t]hough, generally, both public and private wrongs are redressed through judicial action, there are more summary extrajudicial remedies for both. An instance of extrajudicial redress of a private wrong is, the recapture of goods by their lawful owner; of a public wrong, by a private person, is the abatement of a public nuisance; and the recovery of public dues by a summary process of distress, issued by some public officer authorized by law, is an instance of redress of a particular kind of public wrong, by the act of the public through its authorized agents. n235

Murray's Lessee distinguishes between personalized private injuries and matters affecting the whole (such as public nuisance and public dues). The passage in Murray's Lessee concerning Congress' discretionary power to assign matters affecting the Whole to the courts is in its historical context an expression, congruent with the Court's acceptance of congressionally authorized mandamus actions in Kendall and Hall, of the intermediate jurisdictional status of the public rights model. n236

 [*1416]  The second anachronism is the attribution of the private rights model of constitutional adjudication to Marbury v. Madison. n237 Marbury was a mandamus case and, thus, a manifestation of the public rights model. But this case arose in the context of a claim of private right, which perhaps makes it the most celebrated but misunderstood illustration of the intermediate legal position of public rights law. Much of the legal discussion in Marbury concerned the power of the courts to require compliance with the law on the part of executive officers and the scope of mandamus as an instrument for that purpose. n238 The significance of the Court's ruling in its own time was its assertion of mandamus power over senior officers of the government. n239 Its novelty lay in suggesting that Congress could only vest that power in the lower courts n240 and not in the Supreme Court, which was the closest American equivalent to King's Bench.

Marbury's assertion of the power of judicial review followed naturally from the affirmation of the public rights model of mandamus power over executive officials. Marbury's apparent focus on individual injury as a condition precedent to the court's adjudication n241 was a settled part of the law of mandamus in cases of private right, as we saw in Metz, and not a sine qua non of all constitutional cases. n242 The modern perspective on Marbury as an instance of the prototypical private rights model, rather than an instance of the intermediate public rights model, is a radical prototype effect.

The intermediate legal status of the public rights model and the phenomenon of prototype effects also help explain a third historical misconception common to most legal scholarship in this area. Traditional  [*1417]  analyses describe the issues raised by nineteenth century citizen-government relations as concerning intrusions upon citizens' autonomy — a sphere marked by the common law protections of person and property. In this view, the private rights model was sufficient to mediate and accommodate these concerns, but not the twentieth century concerns about governmental denial of expected entitlements. n243 Modern tensions in standing law have been attributed, incorrectly, to these ostensible shifts in the focus of citizen-government relations from concerns about autonomy to issues of entitlement. n244

But the problems of the nineteenth century were not so purely "Lockean." n245 They also concerned entitlements no less central to the citizen-government relationship than welfare benefits or access to government contracts are today. In a geographically and commercially expanding nineteenth century America, the building of roads and the maintenance of navigable waterways were matters of public concern. Metz and Hall were public rights cases about problems arising from these entitlements. The public rights model could have provided a nineteenth century paradigm for modern litigation about entitlements. It didn't, in part because it had been eclipsed by the private law prototype and in part because of the systematic attempt to dismember the public rights model from 1900 onward.