Last time, I set out the question of judicial standing and the abrupt switch by the Supreme Court in 1970 to the requirement that plaintiffs show an “injury in fact” to obtain standing. Here I want to look at the historical development of that term.
The earliest use of the phrase “injury in fact” in US courts is in Hepburn and Dundas v. Auld, an 1809 Supreme Court case about contracts. “Specific performance” of a contract means that you can compel the other party to do exactly what the contract says (as opposed to, for example, doing something else of equivalent value). Hepburn and Dundas (H&D) contracted with Graham for the sale of some 6,000 acres of land for $18,000, payable in installments with interest. H&D also owed Dunlop & Co. a large sum of money, and agreed with Auld (Dunlop’s agent) to transfer the contract to Auld, including the rights to enforce it, “towards the discharge” of this debt (271).
Casemine.com offers the following helpful summary of what happened:
“Hepburn and Dundas entered into an agreement with Colin Auld, wherein they bound themselves to assign a land contract to Auld in lieu of paying a debt. When they failed to execute this assignment on the stipulated date, they sought specific performance from the court to compel Auld to accept the assignment and release them from all claims by Dunlop Co. The Supreme Court, through the majority opinion delivered by Chief Justice Marshall, ruled against Hepburn and Dundas. The Court found that despite subsequent efforts to cure title defects, the initial omissions rendered the contract unsuitable for specific performance. The bill for specific performance was dismissed, upholding the decision that fundamental contractual and title requirements must be met unequivocally”
In other words, Hepburn and Dundas tried to force Auld to accept assignment of a land contract, per an agreement they had made with him. The Court ruled that, because the title had problems, it was inappropriate to enforce the contract exactly as written and force Auld to accept the (defective) title.
How does this have anything to do with injury in fact? As part of the proceedings – basically a subplot that doesn't bear on the final resolution – questions had arisen as to whether H&D actually held title to the land, Auld having averred that “it was apparent that their title was bad, or at all events doubtful” (264). In response:
“Hepburn and Dundas filed a supplemental bill which states their title. It avers possession ever since 1773, and refers to certain title papers; they say that they verily believe their title to be good, and never heard a doubt till long after the tender of the assignment; that as soon as the objections were made known, they took pains to remove them, and have lately obtained deeds of confirmation from the surviving patentees. That the title of Sarah, one of the co-devisees of John West, after her death in 1795, descended upon her brothers Thomas, John, and Hugh and her sister Catharine, and that John, Hugh, and Catharine have lately confirmed their title, and refer to the deeds, and they suppose that Thomas had passed all his title to Sarah's part by a deed executed before her death.” (264).
The case then recites the details of these efforts and their documentation. The question, then arose as to whether H&D’s efforts to clarify and secure the title to the land constituted interference with the contract. The Court concludes that it did not because it did not cause Auld an “injury in fact:”
“The interference of Hepburn and Dundas, in accommodating the suit with Graham, is also urged as an objection to their conduct. They had certainly no right to interfere without the consent of Colin Auld. But when the correspondence is inspected, and it is perceived that they interfered only to effect the object he had himself desired, and which he had avowed his own inability to effect without their consent, the interference must be considered as innocent in point of intention, and unproductive of injury in fact. The court, then, perceive[s] nothing in the conduct of the plaintiffs, up to the decision of the suit with Graham, which ought to defeat their right to demand a specific performance of this contract. Could they at that time have conveyed a good title, Colin Auld ought to have accepted it.” (Hepburn & Dundas v. Auld, 9 U.S. 262, 275 (1809)
That is, H&D were trying to do what Auld wanted them to do by honoring the contract, and that effort didn’t hurt Auld.
The Court then invokes a counterfactual. Would things have been different had H&D not tried to remedy the defects in the title?
“These omissions, then, to record the deeds of Thomas and Hugh West, and the total want of title as to Mrs. Bronaugh's part, have produced no real inconvenience to Colin Auld. Had the title been unexceptionable, it would still have been refused, and this contest would still have been carried on with the same determined perseverance which marks the conduct of the parties. Under these circumstances, it is the opinion of the majority of the Court that this case ought to be governed by those general principles which regulate the conduct of a court of chancery in decreeing a specific performance, if the defect of title, which existed at the time of contract, be cured before the decree” (275).
In other words, equitable principles dictate that if the defects in the title can be remedied, that’s ok. H&D shouldn’t be penalized for interfering with the contract by trying to do so. Unfortunately for H&D, they didn’t fix the problems with the title: “The omission to record the deed from Thomas West is not cured, and this Court is now to decide whether, under these circumstances, Hepburn and Dundas are entitled to claim a specific performance.”
Should H&D be entitled to force Auld to accept the land transfer, given the problems in recordkeeping? Equity says no, because Auld would likely incur expenses and take on risk in dealing with the missing deed:
“Had there been simply a deficiency of 208 acres, the majority of the Court would have considered it as a case for compensation; or had the parties entitled to this land been before the court, a division might possibly have been directed, and compensation for that quantity ordered; but however this might be, as persons not before the Court hold this interest, no order can be made respecting it, and it may very much embarrass those acts for asserting the title which may possibly be necessary. The part actually conveyed by Thomas West, too, never having been confirmed by a deed from himself or his heirs, properly recorded, might impose on Colin Auld the necessity of bringing a suit in chancery to perfect his title, or of being subjected to the inconveniences constantly attending the establishment of a deed not recorded, and the risks inseparable from such a deed.” (278).
The Court concludes that “this, therefore, is thought by a majority of the Court to be a case not proper for a specific performance, and the bill is to be dismissed.” (278).
The case is byzantine, and noted for its establishment of principles of contract and equity in real estate (tl;dr: make sure you have clean title to land you want to transfer the rights to!). But the “injury in fact” language does read like a proto-version of what the Court came up with in 1970: did anything materially bad happen to Auld? Significantly, the question is whether behavior by H&D which was technically not proper actually caused any such “inconvenience” (“inconvenience” can mean serious harm: Locke uses it, for example, to refer to life in the state of nature, e.g., at Second Treatise secs. 13 and 90). Concluding it did not, the Court decided that it did not warrant legal intervention. That said, it’s worth underlining that all of this is framed in traditional juridical terms: the question is one of fulfillment of contractual obligations, and the parties are understood to be bound by the contractual terms and the questions are about whether their behavior hinders the ordinary performance of those terms.
Next time I’ll continue with the historical rabbit hole.
New APPS 