jus tertii

Jus tertii is a Latin phrase meaning “the law concerning the third.” In the context of American law, jus tertii may refer to one of two distinct concepts. 

• First, it may refer to third party standing.
  • Third party standing allows the court to consider the rights of parties who aren’t involved in the initial dispute, without requiring these parties to be joined. 
• Jus tertii may also refer to a self-limiting legal doctrine in common law.
  • The doctrine of jus tertii limits judges to rule only on matters that are directly relevant to the case at hand, and not make rulings that are unnecessary to resolving the dispute.
  • This ensures that every issue is properly considered and litigated before it is decided by a judge. 

Jus Tertii: Third Party Standing

Third party standing is not a constitutional right in the United States. As a rule, judges are extremely reluctant to grant standing to third parties, preferring that parties litigate their injuries directly. However, there are three notable exceptions to this general rule. 

The first exception involves cases where the court allows a party to assert the rights of a third party as a defense against government actions. For instance, the Supreme Court has allowed defendants to assert the rights of third parties:

• In criminal cases where the defendant challenges their conviction on the grounds that enforcing their conviction would negatively affect the rights of a third party,
• In First Amendment cases where the defendant argues that a law is significantly overbroad and will infringe on a third party’s freedom of speech,
• And in criminal and civil cases where a defendant argues that the government’s actions would be discriminatory to a protected class, even if the defendant is not part of that class. For instance, if a prosecutor improperly dismisses jurors based on their race, the defendant may use jus tertii in their appeal, whether or not the defendant was discriminated against.

The second exception involves cases where a plaintiff sues to defend the constitutional rights of a non-litigant. Unlike in the first type of case, where defendants only need to imagine a hypothetical third party, in these actions, courts have generally required the plaintiff to show that they have an intimate connection to the rights and rights holders in question. Courts have often used their discretion to limit third party standing further, requiring plaintiffs to show that it would be extremely difficult for the rights holder to litigate the matter themselves. Examples of this types of cases include:

• A vendor suing on behalf of their potential customers,
• A political organization suing on behalf of its members,
• Or a union suing on behalf of its members. 

The third exception involves replevin cases. In replevin cases, the legal agent of the proper owner may recover property from the current possessor based on the property rights of the owner. For a jus tertii argument to succeed, the party invoking it must show that they have a more legitimate interest than the current possessor. For example: 

• A bailee or legal agent of the proper owner may invoke jus tertii on behalf of the owner. 
• Anyone else may not invoke jus tertii, as they do not have a better title to the property than the wrongful possessor. 

[Last updated in June of 2023 by the Wex Definitions Team]