Nos. 18-587, 18-588, 18-589
`
`In the Supreme Court of the United States
`__________________
`DEPARTMENT OF HOMELAND SECURITY, et al., Petitioners,
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
`Respondents.
`__________________
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
`et al., Petitioners,
`v.
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
`COLORED PEOPLE, et al., Respondents
`__________________
`KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND
`SECURITY, et al., Petitioners,
`v.
`MARTIN JONATHAN BATALLA VIDAL, et al., Respondents.
`__________________
`On Writs of Certiorari to the United States Courts of Appeals
`for the Ninth, District of Columbia, and Second Circuits
`__________________
`BRIEF OF AMICI CURIAE PUBLIC INTEREST LAW CENTER,
`WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
`AND URBAN AFFAIRS, AND THE MISSISSIPPI CENTER
`FOR JUSTICE IN SUPPORT OF RESPONDENTS
`__________________
`THOMAS W. HAZLETT
`WILLIAM ALDEN MCDANIEL, JR.
`BALLARD SPAHR LLP
` Counsel of Record
`STEPHEN J. KASTENBERG
`300 East Lombard Street
`JULIANA B. CARTER
`18th Floor
`MANSI G. SHAH
`Baltimore, MD 21202
`BALLARD SPAHR LLP
`(410) 528-5600
`1735 Market St., 51st Fl.
`Philadelphia, PA 19103
`(215) 665-8500
`HazlettT@ballardspahr.com
`Counsel for Amici Curiae
`Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
`
`
`
`In the Supreme Court of the United States
`__________________
`DEPARTMENT OF HOMELAND SECURITY, et al., Petitioners,
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
`Respondents.
`__________________
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
`et al., Petitioners,
`v.
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
`COLORED PEOPLE, et al., Respondents
`__________________
`KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND
`SECURITY, et al., Petitioners,
`v.
`MARTIN JONATHAN BATALLA VIDAL, et al., Respondents.
`__________________
`On Writs of Certiorari to the United States Courts of Appeals
`for the Ninth, District of Columbia, and Second Circuits
`__________________
`BRIEF OF AMICI CURIAE PUBLIC INTEREST LAW CENTER,
`WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
`AND URBAN AFFAIRS, AND THE MISSISSIPPI CENTER
`FOR JUSTICE IN SUPPORT OF RESPONDENTS
`__________________
`THOMAS W. HAZLETT
`WILLIAM ALDEN MCDANIEL, JR.
`BALLARD SPAHR LLP
` Counsel of Record
`STEPHEN J. KASTENBERG
`300 East Lombard Street
`JULIANA B. CARTER
`18th Floor
`MANSI G. SHAH
`Baltimore, MD 21202
`BALLARD SPAHR LLP
`(410) 528-5600
`1735 Market St., 51st Fl.
`Philadelphia, PA 19103
`(215) 665-8500
`HazlettT@ballardspahr.com
`Counsel for Amici Curiae
`Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
`
`
`
`i
`TABLE OF CONTENTS
`iii
`TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . .
`INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . 1
`INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 3
`ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
`I. FEDERAL COURTS HAVE AUTHORITY TO
`GRANT EQUITABLE RELIEF THAT APPLIES
`NATIONWIDE, TO PARTIES BEYOND THOSE
`BEFORE THE COURT. . . . . . . . . . . . . . . . . . . . . 3
`A. “Principles, Rules, and Usages” of English
`Equity Before 1789 Included Granting
`Injunctions that Extended Beyond the
`Parties Before the Court . . . . . . . . . . . . . . . . . 6
`1. English equity decisions before 1789 . . . . 7
`2. Calvert’s treatise also demonstrates that
`equitable relief applied broadly under
`English law. . . . . . . . . . . . . . . . . . . . . . . . 10
`B. Early American Equity Practice Granted
`Relief that Applied Beyond the Parties to a
`Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
`1. STORY’S EQUITY PLEADINGS establishes
`that equitable relief in United States
`courts never was limited to the parties
`before the court . . . . . . . . . . . . . . . . . . . . 12
`
`
`
`ii
`2. Early federal and state decisions in equity
`granted relief that applied beyond the
`parties to the litigation . . . . . . . . . . . . . . 15
`3. Pomeroy’s TREATISE UPON EQUITY
`JURISPRUDENCE and additional early
`American decisions . . . . . . . . . . . . . . . . . 18
`C. The Civil Rights Era Provided Widespread
`Injunctive Relief to Address Harm to Broad
`Populations . . . . . . . . . . . . . . . . . . . . . . . . . . 22
`CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
`
`
`
`iii
`TABLE OF AUTHORITIES
`
`CASES
`Atlas Life Ins. Co. v. W. I. Southern, Inc.,
`306 U.S. 563 (1939). . . . . . . . . . . . . . . . . . . . . . . . 6
`Bailey v. Patterson,
`323 F.2d 201 (5th Cir. 1963). . . . . . . . . . . . . 22, 23
`Bailey v. Tillinghast,
`99 F. 801 (6th Cir. 1900). . . . . . . . . . . . . . . . . . . 20
`Blagrave v. Blagrave,
`1 De Gex & Smale 252, 63 E.R. 1056 (1847) . . . . 9
`Boyle v. Zacharie,
`32 U.S. (6 Pet.) 648 (1832) . . . . . . . . . . . . . . . . . . 4
`Brinkerhoff v. Brown,
`6 Johns. Ch. 139 (N.Y. Ch. 1822) . . . . . . . . . . . . 20
`Brown v. Vermuden,
`1 Ch. Cas. 272, 22 E.R. 796 (1676). . . . . . . 7, 8, 10
`Carlton v. Newman,
`1 A. 194 (Me. 1885) . . . . . . . . . . . . . . . . . . . . . . . 20
`Cherokee Nation v. Georgia,
`30 U.S. 1 (1831). . . . . . . . . . . . . . . . . . . . . . . 17, 18
`City of London v. Perkins,
`3 Bro. P. C. 602,
`1 E.R. 1524 (1734). . . . . . . . . . . . . . 8, 9, 13, 14, 20
`Dilly v. Doig,
`2 Ves. junr. 486, 30 E.R. 738 (1794). . . . . . . . . . 10
`
`
`
`iv
`
`Elmendorf v. Taylor,
`25 U.S. (10 Wheat.) 152 (1825). . . . . . . . . . . 16, 17
`Ewelme Hospital v. Andover,
`1 Vern. 266, 23 E.R. 460 (1684) . . . . . . . . . 8, 9, 10
`Fitton v. Macclesfield,
`1 Vern. 287, 23 E.R. 474 (1684) . . . . . . . . . . . . . . 8
`Grupo Mexicano de Desarrollo, S.A. v. Alliance
`Bond Fund, Inc., 527 U.S. 308 (1999) . . . . . 4, 6, 9
`How v. Tenants of Bromsgrove,
`1 Vern. 22, 23 E.R. 277 (1681) . . . . . . . . . . . . . . . 8
`Knight v. Carrollton R. Co.,
`9 La. Ann. 284 (1854) . . . . . . . . . . . . . . . . . . . . . . 6
`Knight v. Knight,
`3 P. Wms. 331, 24 E.R. 1088 (1734) . . . . . . . . . . 12
`Lord Tenham v. Herbert,
`2 Atk. 483, 26 E.R. 692 (1742) . . . . . . . . . 9, 10, 20
`Mayor of York v. Pilkington,
`1 Atk. 282, 26 E.R. 180 (1737) . . . . . . 9, 13, 14, 20
`McTwiggan v. Hunter,
`30 A. 962 (R.I. 1895) . . . . . . . . . . . . . . . . . . . 20, 21
`Trump v. Hawaii,
`585 U.S. ___, 138 S. Ct. 2392 (2018) . . . . . . . . 2, 5
`United States v. W. T. Grant Co.,
`345 U.S. 629 (1953). . . . . . . . . . . . . . . . . . . . . . . 23
`Vattier v. Hinde,
`33 U.S. (7 Pet.) 252 (1833) . . . . . . . . . . . . . 4, 9, 17
`
`
`
`v
`
`Vulcan Soc’y of N.Y.C. Fire Dept., Inc. v. Civil
`Service Com.,
`360 F. Supp. 1265 (S.D.N.Y. 1973),
`aff’d, 490 F.2d 387 (2d Cir. 1973). . . . . . . . . 23, 24
`West v. Randall,
`2 Mason 181, 29 F. Cases 718
`(C. Ct. D.R.I. 1820) . . . . . . . . . . . . . . . . . . . . 15, 16
`CONSTITUTION
`U.S. CONST., ART. III, SEC. 2 . . . . . . . . . . . . . . . . . . . 4
`OTHER AUTHORITIES
`J. Altman, Implementing a Civil Rights Injunction:
`A Case Study of NAACP v. Brennan, 78 COLUM.
`L. REV. 739 (1978). . . . . . . . . . . . . . . . . . . . . . . . 22
`S. Bray, Multiple Chancellors: Reforming the
`National Injunction, 131 HARV. L. REV. 417
`(2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`F. Calvert, A TREATISE UPON THE LAW RESPECTING
`PARTIES TO SUITS IN EQUITY
`(2d ed. 1847) . . . . . . . . . . . . . . . . . . . . . . 10, 11, 12
`A. Dobie, HANDBOOK OF FEDERAL JURISDICTION AND
`PROCEDURE (1928) . . . . . . . . . . . . . . . . . . . . . . . . 4
`J. Pomeroy, A TREATISE UPON EQUITY
`JURISPRUDENCE AS ADMINISTERED
`IN THE
`UNITED STATES OF AMERICA, VOL. I (3rd ed.
`1905) . . . . . . . . . . . . . . . . . . . . . . 13, 18, 19, 20, 21
`
`
`
`vi
`J. Story, COMMENTARIES ON EQUITY PLEADINGS, AND
`THE INCIDENTS THEREOF, ACCORDING TO THE
`PRACTICE OF THE COURTS OF EQUITY, OF
`ENGLAND AND AMERICA (3d. 1844) . . . . . . . passim
`
`
`
`1
`INTEREST OF AMICI CURIAE1
`Amici curiae are The Public Interest Law Center of
`Philadelphia, Pennsylvania, The Washington Lawyers’
`Committee for Civil Rights and Urban Affairs of
`Washington, D.C., and The Mississippi Center for
`Justice, all nonpartisan, nonprofit organizations whose
`shared roots date to 1963, when President John F.
`Kennedy enlisted the private bar’s leadership and
`resources in combating racial discrimination, and the
`resulting inequality of opportunity, through creation of
`The Lawyers’ Committee for Civil Rights Under Law.
`These
`independently
`funded and governed
`organizations battle injustice in its many forms and
`create systemic reform.
`Amici work on some of the most important national
`issues of our
`times,
`including voting rights;
`employment discrimination; healthcare; fair housing
`and community development; environmental health
`and justice; educational opportunity; rights of persons
`with disabilities; and immigration. Together these
`amici are part of the largest network of private lawyers
`in America focused primarily on civil rights issues.
`One of the underlying issues in the cases on appeal
`is a federal court’s ability to issue a nationwide
`
`1 The parties submitted blanket consents to submissions of amicus
`curiae briefs in this case, and, pursuant to this Court’s Rule
`37.3(a), amici are filing this brief based on such consents. In
`accordance with Rule 37.6, amici affirm that no counsel for any
`party authored this brief, and no person other than amici, their
`members, or their counsel made a monetary contribution to the
`preparation or submission of this brief.
`
`
`
`2
`injunction. For the most vulnerable communities
`represented by amici,
`including the poor, and
`historically disenfranchised people of color, nationwide
`injunctions are often critical for achieving justice.
`Nationwide injunctions are vital tools in advancing the
`cause of equal justice under law in a wide range of
`litigation. Their legality directly affects the mission
`and work of amici curiae.
`INTRODUCTION
`Amici submit this brief to address the legality of
`nationwide injunctions, should that become a matter
`under consideration by the Court in this instance.
`As do the district court decisions in the cases under
`review here, the Court’s recent decision in Trump v.
`Hawaii, 585 U.S. ___, 138 S. Ct. 2392 (2018), involved
`appeals from two federal district courts that “entered
`nationwide preliminary
`injunctions barring
`enforcement of the” federal government’s conduct. Id.
`at 2404. The injunctions there were “nationwide” in
`that they “barred the Government from enforcing the
`President’s Proclamation against anyone, not just the
`plaintiffs.” Id. at 2424 (Thomas, J., concurring). The
`Court vacated the two injunctions, but did so without
`addressing the propriety in that case—or in general—of
`injunctions with a national scope. Because amici
`believe national injunctions are not only a lawful form
`of equitable relief, but also serve a vital role in the
`enforcement of justice, we submit this amicus brief
`directed to the issue of nationwide injunctions.
`
`
`
`3
`SUMMARY OF ARGUMENT
`Contrary to recent suggestions that so-called
`nationwide injunctions are a recent phenomenon, that
`go beyond the traditional powers of equity invested in
`the courts of the United States, courts of equity in
`England before the founding of the United States, and
`in state and federal courts in the early days of the
`Republic, frequently granted relief that extended well
`beyond the parties before the court. These decisions
`support the granting of
`injunctive relief with
`nationwide application. This brief provides the Court
`with
`the historical record
`that demonstrates
`nationwide injunctions are well within the scope of the
`traditional equity powers of the United States courts,
`and therefore a Constitutional form of relief.
`ARGUMENT
`I. FEDERAL COURTS HAVE AUTHORITY TO
`GRANT EQUITABLE RELIEF THAT APPLIES
`NATIONWIDE, TO PARTIES BEYOND THOSE
`BEFORE THE COURT
`When government acts wrongfully, the impact can
`be felt throughout the community, the state, or the
`country. Providing effective remedies to cure serious,
`wide-reaching wrongs is not only a well-settled use of
`the judicial power, it also may be the only remedy
`available to courts to redress adequately the threat of
`immediate, irreparable harm.
` Arguments that
`nationwide injunctions are a “modern” invention,
`calling into question whether such a form of equitable
`relief is consistent with historical practice and the
`Constitution, are based on an incorrect premise.
`
`
`
`4
`ARTICLE III of the Constitution provides that “[t]he
`judicial Power” of the federal courts “shall extend to all
`Cases, in Law and Equity, arising under this
`Constitution [and] the Laws of the United States[.]”
`U.S. CONST., ART. III, SEC. 2. As to such “judicial
`Power” in equity cases, “settled doctrine . . . is, that the
`remedies in equity are to be administered . . . according
`to the practice of courts of equity in the parent
`country . . . ; subject, of course, . . . to such alterations
`and rules as . . . the courts of the United States may,
`from time to time, prescribe.” Boyle v. Zacharie, 32
`U.S. (6 Pet.) 648, 658 (1832) (Story, J.) (emphasis
`added); see also Grupo Mexicano de Desarrollo, S.A. v.
`Alliance Bond Fund, Inc., 527 U.S. 308, 318 (1999)
`(“authority to administer” equity suits consistent with
`“principles of the system of judicial remedies . . .
`devised and . . . administered by the English Court of
`Chancery at the time of the separation of the two
`countries”); Vattier v. Hinde, 33 U.S. (7 Pet.) 252 (1833)
`(Marshall, C.J.) (equitable powers of federal courts
`“generally understood to adopt the principles, rules and
`usages of the court of chancery of England”); A. Dobie,
`HANDBOOK OF FEDERAL JURISDICTION AND PROCEDURE,
`at 660 (1928) (“equity jurisdiction of the federal courts
`is the jurisdiction in equity exercised by the High Court
`of Chancery in England at the time of the adoption of
`the Constitution and the enactment of the original
`Judiciary Act”).
`Nationwide injunctions—that is, injunctions issued
`by federal courts enjoining a party’s conduct, and
`protecting parties and non-parties affected throughout
`the United States—are entirely consistent with
`historical practice in English courts before the adoption
`
`
`
`5
`of the Constitution, and with early precedents in the
`United States, and thus are within the “judicial Power”
`granted by the Constitution.
`Justice Thomas’s recent concurrence in Trump v.
`Hawaii expressed skepticism to whether courts have
`authority to impose “universal injunctions.” Trump,
`138 S. Ct. at 2425 (Thomas, J. concurring). Relying on
`one law review article, Justice Thomas wrote that
`nationwide injunctions against the government do not
`comport with historic English equity practice in two
`ways: first, the English courts of equity “had no
`authority to enjoin” the King, id. at 2427 (citing
`S. Bray, Multiple Chancellors: Reforming the National
`Injunction, 131 HARV. L. REV. 417 (2017)); and second,
`“as a general rule, American courts of equity did not
`provide relief beyond the parties to the case.” Id. In
`his article, Bray argues that, while English courts in
`equity did sometimes protect the rights of persons not
`before the court, they did not afford relief as broad as
`a national injunction in modern America. See Bray,
`131 HARV. L. REV. at 426.
`But there can be no dispute: long-standing English
`and early American precedents establish that, as of the
`time of the Constitution’s adoption, courts of equity
`could issue broad injunctions that affected the rights or
`duties of parties not before the court. The exercise of
`this authority by English courts of equity had been
`settled by at least the 17th Century, and American
`courts frequently exercised this authority from 1789,
`and thereafter through today (including in cases
`against federal, state, or local governments). These
`courts did so, as one American state supreme court put
`
`
`
`6
`it in 1854, to prevent “irreparable mischief, or such
`multiplied vexations, and such constantly recurring
`causes of litigation” as would arise if courts were
`limited to issuing decrees that bound only the parties
`before them. Knight v. Carrollton R. Co., 9 La. Ann.
`284, 286 (1854). That court further identified the
`reason English and American courts of equity imposed
`broad-reaching relief: “If indeed courts of equity did
`not interfere in such like cases, the justice of the
`country would be very lame and inadequate.” Id.
`English practice during the pre-Constitution era,
`and United States courts thereafter, consistently
`exercised equity jurisdiction whenever a party’s
`wrongful conduct would do harm to others, and, where
`necessary, extended that jurisdiction well beyond the
`parties.
`A. “Principles, Rules, and Usages” of English
`Equity Before 1789 Included Granting
`Injunctions that Extended Beyond the
`Parties Before the Court.
`A federal court’s authority to provide equitable
`relief, including an injunction with nationwide scope,
`accords with “the principles of the system of judicial
`remedies which had been devised and was being
`administered by the English Court of Chancery at the
`time of the separation of the two countries.” Atlas Life
`Ins. Co. v. W. I. Southern, Inc., 306 U.S. 563, 568
`(1939); see also, e.g., Grupo Mexicano de Desarrollo,
`S.A., 527 U.S. at 319. Justice Thomas’s concurrence
`and Bray’s article address English equity precedents in
`cursory fashion, but at the time of the adoption of the
`Constitution, English decisions had long recognized
`
`
`
`7
`that the decrees of an equity court could broadly bind
`non-parties. American courts have followed this
`precedent from the earliest days of the country.
`1. English equity decisions before 1789.
`English practice on these issues had been well-
`established by the 1676 decision in Brown v.
`Vermuden, 1 Ch. Cas. 272 & 283, 22 E.R. 796 & 802
`(1676).2 Brown sued to enforce a decree “against
`certain Persons Workers and Owners of Lead Mines in
`Derbyshire” requiring defendants to pay a certain
`amount based on the quantity of lead ore mined. Id. at
`283, 22 E.R. at 802. The original suit proceeded
`against four defendants, but the Chancellor entered a
`judgment in favor of Brown’s predecessor, and his
`successors, “whereby a certain manner of tithing of
`Lead [Ore] was decreed, not only against the particular
`Persons named Defendants, but all other Owners and
`Workers.” Id. at 272, 283, 22 E.R. at 797, 802.
`Brown’s predecessor served
`the decree on
`Vermuden, “who owned and wrought a Mine there.”
`Id. at 273, 22 E.R. at 797. Vermuden “insisted that he
`[was] not bound by the Decree, for that he was not
`Party to” the original suit, and was not in privity with
`a party. Id. Vermuden argued that he “could have no
`Bill of Review of [the decree] if it be erroneous, and
`therefore ought not to be bound” by its terms. Id.; see
`also id. at 283, 22 E.R. at 802 (“Vermuden pleaded . . .
`That he was a Stranger”).
`
`2 The Chancellor issued two decisions in Brown v. Vermuden; both
`addressed whether an equitable decree applied to non-parties.
`
`
`
`8
`The Lord Chancellor overruled Vermuden’s plea,
`holding, the “Decree passed against the
`four”
`defendants in the original case brought by Brown’s
`predecessor required not just “that the Defendants,”
`but that “all the Miners should pay.” Id. at 273, 22
`E.R. at 797. “If [Vermuden] should not be bound, Suits
`of this Nature . . . would be infinite, and impossible to
`be ended.” Id. (emphasis added). The Chancellor thus
`enforced the decree against Vermuden, though he had
`not been a party to the original action, or in privity
`with the parties. Id. at 273, 22 E.R. at 797; id. at 283,
`22 E.R. at 802. Numerous other courts of equity in
`early England reached the same result. See, e.g.,
`Ewelme Hospital v. Andover, 1 Vern. 266, 267, 23 E.R.
`460, 461 (1684) (allowing action in equity to proceed
`without all parties in interest); Fitton v. Macclesfield,
`1 Vern. 287, 292-93, 23 E.R. 474, 476 (1684) (denying
`“bill of review” and finding court had equitable
`jurisdiction over prior matter despite failure to have
`before it all parties in interest); How v. Tenants of
`Bromsgrove, 1 Vern. 22, 23 E.R. 277 (1681) (concluding
`“Bills of peace” applicable to non-parties “are proper in
`equity” “to prevent multiplicity of suits”).
`The House of Lords, in City of London v. Perkins, 3
`Bro. P. C. 602, 1 E.R. 1524 (1734), discussed the
`rationale for the broad reach of this practice. Perkins
`involved serial disputes over the right of London to
`collect a duty, to be “applied to the use of the lord
`mayor for the time being, for supporting the dignity of
`his office.” Id. at 603, 1 E.R. at 1524. In a later
`dispute, London instituted an equity action in the
`Court of Exchequer, pleading the prior decrees as
`grounds to require payment of the duties. On appeal,
`
`
`
`9
`the House of Lords recognized that “the duty in
`question was a demand against the common rights and
`freedom of every subject of England.” Id. at 606, 1 E.R.
`at 1527 (emphasis added). The Lords, on this ground,
`enforced the earlier decrees against defendants, none
`of whom had been parties in those earlier cases. Thus,
`equity jurisdiction extended in England to cases
`involving matters of broad public importance, where
`the decree would bind many members of the public not
`before the court as parties. See also Blagrave v.
`Blagrave, 1 De Gex & Smale 252, 258, 63 E.R. 1056,
`1058 (1847) (clarifying that issue in Perkins was
`equitable relief applying to “the public”); Mayor of York
`v. Pilkington, 1 Atk. 282, 26 E.R. 180 (1737) (“all the
`king’s subjects” could be bound by decree in equity in a
`case, even where only few subjects were parties).
`These cases, among others, establish that “the
`system of judicial remedies which had been devised and
`was being administered by the English Court of
`Chancery at the time of the separation of the two
`countries,” Grupo Mexicano de Desarrollo, S.A., 527
`U.S. at 318, and the “principles, rules and usages of the
`court of chancery of England” at that time, Vattier, 33
`U.S. (7 Pet.) at 274, included broad authority to issue
`decrees that bound parties not before the Chancellor.
`This authority applied where the dispute involved “a
`general exclusive right,” Lord Tenham v. Herbert, 2
`Atk. 483, 484, 26 E.R. 692, 692 (1742); where “all the
`king’s subjects may be concerned in this right,”
`Pilkington, 1 Atk. at 284, 26 E.R. at 181; where the suit
`was between government and “the public,” Blagrave, 1
`De Gex & Smale at 258, 63 E.R. at 1058; “to prevent
`multiplicity of suits,” Ewelme Hospital, 1 Vern. at 267,
`
`
`
`10
`23 E.R. at 461; where “one general right was liable to
`invasion by all the world,” Dilly v. Doig, 2 Ves. junr.
`486, 487, 30 E.R. 738, 738 (1794), or where individual
`suits “would be infinite, and impossible to be ended,”
`Brown, 1 Ct. Ch. at 274, 22 E.R. at 797. In short,
`whenever parties otherwise “must [go] all round the
`compass to” settle the issues in dispute. Lord Tenham,
`2 Atk. at 484, 26 E.R. at 692.
`2. Calvert’s treatise also demonstrates that
`equitable relief applied broadly under
`English law.
`The leading English treatise addressing the scope of
`equity practice prior to the establishment of the
`Constitution is A TREATISE UPON THE LAW RESPECTING
`PARTIES TO SUITS IN EQUITY (2d ed. 1847), by Frederic
`Calvert (“PARTIES IN EQUITY”).3 Calvert began by
`stating the general rule regarding parties to equitable
`actions: “whether the relief sought in the bill, in other
`words, the equity of the bill touches any particular
`person, so as to obtain from him a benefit, or to fasten
`upon him a duty,” such a person is a “necessary party.”
`PARTIES IN EQUITY at 16, 21. But he noted that, this
`rule “is founded upon general convenience,” and is
`subject to numerous “occasions for the relaxation of the
`rule.” Id. at 21. Calvert explained that “relaxation” is
`necessary in equity because:
`
`3 Justice Joseph Story wrote that no “comprehensive and accurate”
`treatment of this subject existed before PARTIES IN EQUITY. See
`J. Story, COMMENTARIES ON EQUITY PLEADINGS, AND THE
`INCIDENTS THEREOF, ACCORDING TO THE PRACTICE OF THE COURTS
`OF EQUITY, OF ENGLAND AND AMERICA (3d. 1844) (“STORY’S EQUITY
`PLEADINGS”) at xi.
`
`
`
`11
`The complication of human affairs has, however,
`become such, that it is impossible always to act
`strictly on this general rule. Cases arise, in
`which if you hold it necessary to bring before the
`court every person having an interest in the
`question, the suit could never be brought to a
`conclusion. The consequence would be that if
`the court adhered to the strict rule, there would
`in many cases be a denial of justice.
`Id. at 21-22 (emphasis added; internal quotation,
`citation omitted). Calvert discussed over a dozen
`“instances of relaxation” for various circumstances, id.
`at 22-54, each of which Calvert supported by citations
`to numerous cases decided before the establishment of
`the United States. All of the “relaxations” of the
`general rule, and the English cases cited in support of
`them, illustrate the great flexibility the English equity
`courts had before 1789 to permit bills that affected the
`rights of persons or entities not before the court as
`parties.
`Calvert rooted the “relaxations” of the general rule
`regarding parties in fundamental principles of the
`courts of equity in England: “A Court of Law decides
`some one individual question, which is brought before
`it,” whereas “a Court of Equity not merely makes a
`decision to that extent but also arranges all the rights,
`which the decision immediately affects.” Id. at 3
`(emphasis added). Calvert added that a “‘Court of
`Equity, in all cases, delights to do complete justice, and
`not by halves’; to put an end to litigation, and to give
`decrees of such a nature, that the performance of them
`may be perfectly safe to all who obey them: interest
`
`
`
`12
`reipublicae ut sit finis litium [it is in the interest of the
`public that litigation come to an end].” Id. (emphasis
`added; translated from Latin; quoting Knight v. Knight,
`3 P. Wms. 331, 333, 24 E.R. 1088, 1089 (1734)).
`Calvert’s analysis in PARTIES IN EQUITY supports
`the conclusion that English courts possessed the
`equitable authority to bind persons who were not
`parties to the action, notably in cases involving general
`interests, and the rights of the public. English equity
`practice as of 1789 fully supports the use of equitable
`power by federal courts in this country to issue
`injunctions with nationwide scope.
`B. Early American Equity Practice Granted
`Relief that Applied Beyond the Parties to a
`Litigation
`These principles of English practice carried over to
`early American equity courts, as demonstrated by both
`the leading 19th and 20th Century treatises on the
`subject, and federal and state equity decisions.
`1. STORY’S EQUITY PLEADINGS establishes
`that equitable relief in United States
`courts never was limited to the parties
`before the court.
`The leading American treatise on equity in the 19th
`Century was STORY’S EQUITY PLEADINGS, by Justice
`Joseph Story. Justice Story analyzed at length the
`usages, rules, and practices that the English cases
`established in equity before 1789, and illustrated how
`American courts had adopted and applied these
`principles in the early days of the United States.
`Justice Story wrote that he aimed his book especially
`
`
`
`13
`to address “the principles, which govern . . . the subject
`of the proper and necessary Parties to Bills.” STORY’S
`EQUITY PLEADINGS at xi; see also J. Pomeroy, A
`TREATISE UPON EQUITY JURISPRUDENCE AS
`ADMINISTERED IN THE UNITED STATES OF AMERICA, VOL.
`I (3rd ed. 1905) (“POMEROY”) §§ 243-275, at pp. 356-458
`(state and federal cases applied approaches of cases
`such as Perkins, Pilkington, and other English
`decisions regarding scope of equitable relief).
`Justice Story’s work tracked Calvert’s research and
`conclusions: after stating the general rule that all
`persons materially interested in the subject matter of
`a suit in equity should be made parties to it, STORY’S
`EQUITY PLEADINGS § 72, at p. 83, the Justice recognized
`an “exception to the general rule[.]” Id. § 94, at
`pp. 114-15. Where such persons “are exceedingly
`numerous, and it would be impracticable to join them
`without almost
`interminable delays and other
`inconveniences, which would obstruct, and probably
`defeat the purposes of justice,” they need not be parties
`to the case, even though the decree would be binding
`upon them. Id. He observed, “the doctrine above
`stated as to the necessity of all persons being made
`actual parties” was riddled with so
`“many
`qualifications” that it was questionable whether it was
`“maintainable at all in its general signification.” Id.
`§ 94, at p. 116.
`The exceptions derive from the fact that “there
`always exists a common interest, or a common right,
`which the Bill seeks to establish and enforce, or a
`general claim or privilege, which it seeks to establish,
`or to narrow, or take away.” Id. § 120, at p. 146
`
`
`
`14
`(emphasis added). “It is obvious,” he stated, “that,
`under such circumstances, the interest of persons, not
`actual parties to the suit, may be in some measure
`affected by the decree; but the suit is nevertheless
`permitted to proceed without them, in order to prevent
`a total failure of justice.” Id. (emphasis added). Justice
`Story cited English cases that antedated the
`Constitution, including Pilkington and Perkins. Id.
`§ 120, at p. 146, nn. 1-4.
`Justice Story cited Perkins as an example of a case
`allowing a bill in equity “where there has been a
`general right claimed by the plaintiff,” id. § 124, at
`p. 150, emphasizing that, in Perkins, the Chancery
`Court had allowed
`the bill
`to go
`forward
`“notwithstanding the objection, that all the subjects of
`the realm might be concerned in the right.” Id. § 124,
`at pp. 149-50 (emphasis added). This was because,
`“[i]n such a case, a great number of actions might
`otherwise be brought, and almost interminable
`litigation would ensue; and, therefore, the Court
`suffered the Bill to proceed, although the defendants
`might make distinct defences, and although there was
`no privity between them and the city.” Id. § 124, at
`p. 150 (emphasis added).
`Justice Story also analyzed Pilkington. He wrote
`that the Chancellor had sustained the action because
`“such a Bill, under the circumstances, . . . furnish[ed]
`a ground to quiet the general right, not only as to the
`persons before the Court, but as to all others in the
`same predicament.” Id. § 125, at p. 150 (emphasis
`added); see also, e.g., id. § 125, at pp. 150-51, n.3.
`Justice Story summarized the law on this point:
`
`
`
`15
`In all these classes of cases, it is apparent, that
`all the parties stand, or are supposed to stand, in
`the same situation, and have one common right,
`or one common interest, the operation and
`protection of which will be for the common
`benefit of all[.]
`Id. § 126, at pp. 151-52 (emphasis added).
`2. Early federal and state decisions in
`equity granted relief that applied
`beyond the parties to the litigation.
`Justice Story also addressed equity practice as to
`absent parties as Circuit Justice in West v. Randall, 2
`Mason 181, 29 F. Cases 718 (C. Ct. D.R.I. 1820). In
`West, plaintiff instituted in federal court “a bill [in
`equity] against the defendants, as survivors of four
`trustees, for a discovery and account of certain real and
`personal estate, alleged to have been conveyed to them
`by one William West[.]” 2 Mason at 189, 29 F. Cases at
`721. West had died, and plaintiff was one of his heirs.
`Plaintiff did not name as parties West’s other heirs or
`West’s personal representative, and one defendant
`sought dismissal for failure to name them. Id. at 189-
`90, 29 F. Cases at 721.
`Justice Story began by acknowledging the “general
`rule in equity that all persons materially interested,
`either as plaintiffs or defendants in the subject matter
`of the bill ought to be made parties to the suit, however
`numerous they may be.” Id. at 190, 29 F. Cases at 721.
`But this “being a general rule, established for the
`convenient administration of justice,” Justice Story
`said, “it must not be adhered to in cases, to which
`
`
`
`16
`consistently with practical convenience it is incapable
`of application.” Id. at 193, 29 F. Cases at 722.
`Justice Story gave two illustrations when the
`exception comes into play: “where the parties are very
`numerous, and the court perceives, that it will be
`almost impossible to bring them all before the court; or
`where the question is of general interest, and a few
`may sue for the benefit of the whole.” Id. (emphasis
`added). Accordingly, “[i]n these and analogous cases of
`general right,” a court of equity will:
`dispense with having all the parties, who claim
`the same right, before it, from the manifest
`inconvenience, if not impossibility of doing it,
`and is satisfied with bringing so many before it,
`as may be considered as fairly representing that
`right, and honestly contesting in behalf of the
`whole, and therefore binding, in a sense, that
`right.
`Id. at 195, 29 F. Cases at 723 (emphasis added).
`In Elmendorf v. Taylor, 25 U.S. (10 Wheat.) 152
`(1825), Chief Justice Marshall, writing for a unanimous
`Court, recognized the flexibility that federal courts of
`equity have in administering the rules as to parties in
`equity actions before them. In that case, defendants
`argued that plaintiff in the equitable action was “a
`tenant in common with others, and ought not to be
`permitted to sue in equity, without making his co-
`tenants parties to the suit,” which he had not done. Id.
`at 166. The Court noted that “[t]his objection does not
`affect the jurisdiction” of the federal court, “but
`addresses itself to the policy of the Court” to the effect
`
`
`
`17
`that in an action in equity, “all parties concerned shall
`be brought before them, that the matter in controversy
`may be finally settled.” Id. (emphasis added).
`But “[t]his equitable rule,” the Court said, “is
`framed by the Court itself, and is subject to its
`discretion.” Id. at 166-67. The rule is not “inflexible,”
`such that “a failure to observe [it] turns the party out
`of Court, because it has no jurisdiction over his cause.”
`
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