Nonparty Protective Relief in the Early Republic: Judicial Power to Annul Letters Patent

Authors

James E. Pfander
Mary E. Zakowski

Publication Date

11-16-2025

Abstract

Much of the debate over the constitutionality of universal or nonparty protective relief in the federal court system has focused on lessons drawn from historical practice. But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of nonparties. As a result, the story of nonparty protective relief has not yet been fully told.

This Article offers a more complete story, highlighting proceedings in which federal courts issued judgments that settled a matter once and for all. Some familiar examples include proceedings in admiralty and naturalization judgments, where a decree was understood to operate on those who did not appear in the litigation. We focus here on the power of federal courts, acting under the patent laws of the 1790s, to entertain individual suits to cancel or annul a patent for all purposes. Such cancellation proceedings, based on a practice that developed in England on the writ of scire facias, were understood to operate as a general matter and could confer benefits on artisans and manufacturers who did not appear in the litigation. Nonparty protective patent cancellation relief was later administered by federal courts of equity and remains a part of the federal judicial role today.

While the Supreme Court in Trump v. CASA, Inc. found that federal courts lacked statutory power to issue universal injunctions, it did not directly address the constitutional question. We show in a brief concluding section that early examples of nonparty protection make it challenging to argue on historical grounds that Article III of the Constitution bars federal courts from granting such relief today. We therefore suggest that assessments of nonparty protective relief focus on deciding whether lower federal courts have been authorized to decide legal issues once and for all. Such a focus helps distinguish free-floating universal injunctions from those based on such sources of legislative authority as the set-aside power conferred in § 706 of the Administrative Procedure Act.

Recommended Citation

James E. Pfander and Mary E. Zakowski, Nonparty Protective Relief in the Early Republic: Judicial Power to Annul Letters Patent, 120 Nw. U. L. Rev. 623 (2025).
https://scholarlycommons.law.northwestern.edu/nulr/vol120/iss3/3