Cases without controversies: uncontested adjudication in article iii courts james e. pfander - The f by Education Libraries

Cases Without Controversies

Uncontested Adjudication in Article III Courts

JAMES E. PFANDER

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© James E. Pfander 2021

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Library of Congress Cataloging-in-Publication Data

Names: Pfander, James E., author.

Title: Cases without controversies : uncontested adjudication in Article III courts / James E. Pfander.

Description: New York : Oxford University Press, [2021] | Includes index.

Identifiers: LCCN 2020048201 | ISBN 9780197571408 (hardback) | ISBN 9780197571415 (UPDF) | ISBN 9780197571422 (EPUB) | ISBN 9780197571439 (Digital-Online)

Classification: LCC KF8719.P43 2021 | DDC 347.73/282—dc23

LC record available at https://lccn.loc.gov/2020048201

DOI: 10.1093/oso/9780197571408.001.0001

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Printed by Integrated Books International, United States of America

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Foreword

This book owes much to my student, faculty, and library colleagues at Northwestern University Pritzker School of Law, where I have been happily professing law for nearly fifteen years. I worked out many of the ideas in this book in a series of law review articles—often in the course of senior research collaborations with Northwestern law students. Uniquely among major law schools, Northwestern encourages third-year students to work closely with professors in the development of scholarly ideas. I owe thanks to Daniel Birk, Emily Damrau, and Michael Downey, all of whom joined me in senior research projects aimed at understanding the mysteries of uncontested adjudication. Thanks as well to the students in my federal jurisdiction classes for wrestling productively with the words of Article III of the U.S. Constitution and to the editors of the law reviews where some pieces of this work first appeared in a less well-integrated form.1

Northwestern Pritzker has a superb faculty and an inclusive and engaging scholarly community, with first-rate library and staff support. I have been, if anything, only too willing to take advantage of these resources. A series of workshops and conversations with my public law colleagues— Steve Calabresi, Zach Clopton, Erin Delaney, Paul Gowder, Heidi Kitrosser, Andy Koppelman, John McGinnis, Jide Nzelibe, Marty Redish, Jim Speta,

1. Thanks in particular to the law reviews who published the following pieces, all of which I have drawn upon with their permission in the course of this book. Standing, Litigable Interests, and Article III’s Case-or-Controversy Requirement, 65 UCLA L. Rev. 170 (2018); Adverse Interests and Article III: A Reply, 111 Nw. U.L. Rev. 1067 (2017) (with Daniel D. Birk); Standing to Sue: Lessons from Scotland’s Actio Popularis, 66 Duke L.J. 1493 (2017); Scalia’s Legacy: Originalism and Change in the Law of Standing, 6 Brit. J. Am. Legal Stud. 85 (2017); A Non-Contentious Account of Article III’s Domestic Relations Exception, 92 Notre Dame L. Rev. 117 (2016) (with Emily Damrau); Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 Yale L.J. 1346 (2015) (with Daniel D. Birk); In Search of the Probate Exception, 67 Vand. L. Rev. 1533 (2014) (with Michael Downey). This material is republished here in a modified form by special permission of the Northwestern Pritzker School of Law and the Northwestern University Law Review.

and Deb Tuerkheimer—have challenged and sharpened my thinking. My colleagues in legal history, Charlotte Crane, Emily Kadens, and Ajay Mehrotra, remind me to read my sources one more time. Tom Gaylord and the Pritzker Legal Research Center team prove that cheerful and unstinting help in locating those sources remains possible in the digital age. My assistant, Jane Brock, impresses me every day with her calm and sophisticated professionalism. Kristi Lew provided indispensable editorial and research assistance.

I feel especially fortunate to have had the opportunity to share these ideas with my colleagues in history and public law across the country and, indeed, around the world. Akhil Amar, Dick Fallon, Tara Grove, Henry Monaghan, Bob Pushaw, and Amanda Tyler have been spirited, if geographically distant, interlocutors. Special thanks to Caleb Nelson and Ann Woolhandler for their willingness to test these ideas and to share the litigable interest construct on which this book draws. Faculty workshops at the law schools at Cornell, Duke, Michigan, North Carolina, Pennsylvania, and Vanderbilt encouraged me to think more deeply about the social forces that drove the changes I recount; participants in meetings of the American Society of Legal History gave me a better feel for the Roman law precursors of uncontested proceedings; and the members of the Tel Aviv University legal workshop, the British Legal History conference in St. Andrews, and the Scottish Legal History Group in Edinburgh displayed a remarkable tolerance for one American’s gloss on a set of ideas that civilians may find only too familiar. Mary Bilder generously helped me modulate my voice and consider my auditors but bears no responsibility for any discordant notes that remain.

A brief word about the editorial apparatus. The endnotes in this book refer to sources—other books, articles, and judicial decisions—that appear in tables of cases and authorities in the back. Endnote references to books and articles in each part will, after a full initial reference, identify only the author(s), page number, and perhaps a brief title to distinguish among multiple works by a single author. Endnote references to decisions of the Supreme Court of the United States will, after a full initial citation, identify the case by first party name, reporter, and page number; abbreviated endnote references to other judicial decisions will also identify the court.

My family continues to provide me with just the right mix of loving support and provocative distraction, reminding me that there’s more to life than

endnotes. In our interactions and discourse, we resemble the federal courts in that we rely on both contentious and non-contentious forms. Whether immediate (Laurie, Sarah, Sam, and Ben) or extended (Margaret, Bill, Michael, and Geoff), family life has bound me more closely to the world and borne me up. It has made this book, and many other things, possible.

Introduction

For students of the federal judiciary, the Supreme Court’s 2013 encounter with the adverse-party requirement in the Defense of Marriage Act (DOMA) case, United States v. Windsor, was disappointing. The Court has rather dogmatically insisted that federal courts can hear only “definite and concrete” controversies that touch upon “the legal relations of parties having adverse legal interests.” But the Court has failed to provide a coherent account of the adverse-party requirement or of how such a requirement can coexist with a variety of clearly non-adverse or ex parte proceedings that have worked their way onto the docket of the federal courts. Since the 1790s, Congress has assigned pension claims, warrant applications, naturalization proceedings, and a surprisingly broad range of other ex parte matters to the federal courts. Even today, the Foreign Intelligence Surveillance Act, a subject of some controversy, requires the government to obtain an ex parte federal court order to conduct certain kinds of electronic surveillance. Aside from a decision nearly one hundred years ago addressing the power of the federal courts to naturalize aliens, and a few relatively uninformative decisions thereafter, the Court has failed to wrestle with the tension between adverse-party rhetoric and ex parte reality.1

Windsor did little to clarify matters. Doubts as to the presence of truly adverse parties had arisen early on, when the government insisted on enforcing DOMA but agreed with its nominal opponent, Edith Windsor, that the law violated her constitutional rights by denying her the beneficial federal tax treatment she would have received had she been the surviving spouse of a man instead of a woman. Yet the opinion by Justice Anthony Kennedy for a five-Justice majority announced that the disappearance of adverseness did not deprive the Court of power to reach the merits. For the majority, the adverse-party requirement was a prudential element of standing doctrine, appropriately informing the Court’s discretion but not inflexibly compelling party opposition as a jurisdictional prerequisite at every stage of every case. The Court did not offer much by way of support for its conclusion that such a requirement existed or, if it did, why it was merely a matter of prudence;

Cases Without Controversies. James E. Pfander, Oxford University Press. © James E. Pfander 2021. DOI: 10.1093/oso/9780197571408.003.0001

certainly the Court took no notice of the many instances in which the federal judiciary, without first consulting prudential considerations, proceeds in the absence of party adverseness.2

Justice Antonin Scalia’s sharply worded dissent also added little to our understanding of the adverse-party requirement. To be sure, Justice Scalia viewed the rule as an “essential element of an Article III case or controversy,” not as a prudential requirement “that we have invented.” Moreover, Justice Scalia attempted to connect the adverse-party restriction to the text of Article III, placing some emphasis on the fact that the term “controversy” connotes a live dispute between opposing parties. But the Justice did not address the meaning of Article III’s grant of “judicial power” or of its reference to “cases”; both terms have suggested to other readers, including Chief Justice John Marshall and Justice Joseph Story, that federal jurisdiction encompasses more than disputes between adversaries.3

As for history, Justice Scalia depicted Article III’s case-or-controversy limits as reflecting the traditional forms of adjudication inherited from early Americans and our “English ancestors,” an echo of an earlier claim that the federal judicial power extends only to the forms and actions of the English courts at Westminster. This emphasis on England and the practice of the courts at Westminster, however, overlooks the fact that the English courts exercised jurisdiction over certain ex parte and non-adverse matters. It also tends, in its focus on the common law, to obscure the alternative forms of adjudication on which the Framers were to draw in crafting Article III. It was mainly in the equity, admiralty, and probate courts of the eighteenth century, where judges rather than juries bore primary responsibility for fact-finding, that the Framers were to encounter the range of ex parte proceedings that made their way onto federal court dockets in the early Republic. Windsor thus brought us little closer to resolving the tension between the theory and reality of the adverse-party requirement.4

Five years later, in 2018, the Court tackled another instance of non-adverse adjudication and again failed to offer any real insight into the nature of the adverse-party requirement. The Court agreed to hear Ayestas v. Davis to clarify the standard of review that governs funding requests by capital habeas petitioners under a federal statute that authorizes payment of investigative costs. Opposing review, the State of Texas argued that the funding application had been submitted in a non-adversarial ex parte context and thus called for an administrative, rather than a judicial, determination. Texas accordingly urged that the habeas petitioner’s appeal from denial of the funding

application was not a “case” within the meaning of federal appellate jurisdiction. But the Court rejected that claim, holding that such matters could qualify as cases for judicial determination and noting that Texas vigorously contested the funding request. While the Court cited a handful of its earlier decisions, it offered no considered justification for its suggested distinction between administrative and judicial matters.5

Like the Court itself, few scholars have explored the textual and historical underpinnings of the adverse-party requirement. Fewer still have assessed the requirement in light of the ex parte practices of the federal courts. To be sure, some students of constitutional history have called attention to certain ex parte proceedings that appear very much at odds with an adverse-party requirement. Others have identified modern examples of seemingly curious departures from our adversary ideal, such as bankruptcy administration. Still others have attempted to justify particular ex parte practices, such as search and arrest warrants, by highlighting the possibility that related adverse-party litigation might ensue. Yet these scholars have not offered a comprehensive account of how such practices fit into the broader framework of Article III adjudication. Instead of attempting to develop a theory that can account for the federal courts’ willingness to hear both adverse-party disputes and ex parte proceedings, scholars tend to treat ex parte practices as aberrational vestiges of an earlier day, or as anomalies that have become too entrenched to question.6

Beneath the surface of this judicial and scholarly neglect lies a deeply ingrained set of assumptions about the adversarial character of the judicial system of the United States. In an adversary system, the parties maintain substantial control over the development of the legal issues and evidence bearing on the resolution of their dispute. Judges play a more passive role as neutral arbiters of disputes presented to them by the parties. This passivity contrasts with the more active judicial role practiced in European and other civil law inquisitorial systems. There, judges develop the factual record of the case and enjoy some control over the legal issues to which they will most closely attend. The attorneys stay somewhat on the sidelines, particularly during the fact-finding process.7

Although the contrast between the Anglo-American adversary system and the inquisitorial systems of continental Europe may be slightly overdrawn, American lawyers and judges have been steeped in the adversarial ideal. In a paper cautiously celebrating the inquisitorial features of developments in the management of mass tort litigation, one commentator recognized that the

culture of American adjudication remains decidedly adversarial and may not easily support a shift to a more inquisitorial model. Indeed, one can sense that the adversary ideal has come to be seen as yet another feature of American procedural exceptionalism, that is, as a deliberate departure from the practice of European countries of which Americans should be justly proud. As another commentator noted, inquisitorial judging has become something of an “epithet among American judges,” with the consequence that most seek to avoid even a “whiff of its judge-dominated procedures.”8

Coupled with neglect of the issue by the Court, scholarly devotion to the adversary tradition tends to encourage strong statements of the adverseparty requirement and to cast doubt on the power of federal courts to entertain ex parte proceedings. After all, in many ex parte proceedings, the courts preside over applications for benefits in somewhat the same way administrative agencies might hear benefit claims. To rule on a petition or application, the judge must investigate the factual and legal justification for the relief sought. Such uncontested proceedings present a challenge, especially for federal judges who may lack the training, administrative support, and inclination to conduct their own investigations. Modern observers justifiably view such ex parte practices as inconsistent with the adversary ideal. Consider, for example, the thorough critique of settlement class actions by Martin Redish and Andrianna Kastanek. The two authors argue that settlement class actions violate Article III’s adverse-party requirement, which they view as a “logical outgrowth of the nation’s commitment to an adversary system.”9

This book tackles the puzzle of how federal courts, limited by Article III’s reference to cases and controversies and by the adversary ideal that animates so much of American procedural exceptionalism, may entertain ex parte proceedings. The key lies in recovering the lost history of the American acceptance of uncontested forms of judicial process. One can best reclaim that history by considering the distinction drawn by civilian lawyers between “contentious” and “non-contentious” jurisdiction. Following Roman law, civilians use the term “contentious” jurisdiction to describe the contests between opposing parties that lie at the heart of the adversary system. They use the terms “voluntary” or “non-contentious” jurisdiction to describe a collection of ex parte proceedings in which petitioners seek a judicial decree confirming that they enjoy a new right or status under applicable law. Civilian systems typically authorize their courts to handle both contested and uncontested adjudication.10

History shows that the American colonies followed England in relying on both contentious and non-contentious forms of adjudication. Proceedings in probate and admiralty jurisdiction in England and the colonies were governed by civil law; both proceedings were understood as in rem, and both featured elements of uncontested adjudication. An outgrowth of estate administration by the courts of equity, bankruptcy includes ex parte proceedings that do not invariably feature adverse parties. Blackstone’s Commentaries described uncontested forms of practice, distinguishing “voluntary” from “contentious” jurisdiction in the probate of wills and granting of administration. Justices of the peace, the workhorses of early modern adjudication, resolved disputes and handled a range of legislative and administrative chores at the county level. All these forms of uncontested adjudication were part of the complex legal world in which lawyers of the early Republic practiced law, and some similar proceedings would find their way onto the dockets of the first federal courts.11

Indeed, evidence from the early Republic suggests that the Framers viewed the “judicial power” with which Article III courts were invested (and to which they were limited) as capacious enough to encompass forms of uncontested adjudication. In one of the clearest examples, Congress adopted a naturalization statute in 1790 that called upon federal courts to entertain petitions for naturalized citizenship on an ex parte basis. Federal and state courts alike heard such petitions throughout the nineteenth century without questioning their propriety, despite the fact that the claimants did not (as required by latter-day statements of Article III standing requirements) seek redress for an injury inflicted by an opposing party. Such leading early exponents of federal jurisdiction as Chief Justice Marshall and Justice Story recognized the power of federal courts to pass on naturalization claims; they viewed the resulting naturalization decrees as judgments of record that were entitled to preclusive effect and immunity from collateral attack.

One can best make sense of this acceptance of ex parte adjudication by better understanding Article III’s extension of the judicial power to “cases” and “controversies.” While modern readers have been taught to view the terms as essentially synonymous, nineteenth-century lawyers and jurists perceived them as quite different. “Controversies” arose between specified opposing parties and were thought to require contestation. But “cases” could include uncontested petitions to secure a right under federal law. Both

Marshall and Story couched their canonical definitions of the term “case” in terms broad enough to encompass ex parte matters. Listen first to the familiar words of Marshall’s opinion in Osborn v. Bank of the United States:

This clause [extending jurisdiction to federal question “cases”] enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That 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, and the constitution declares, that the judicial power shall extend to all cases arising under the constitution, laws, and treaties of the United States.

Story’s Commentaries on the Constitution adopted the same formulation:

A case, then, in the sense of this clause of the Constitution, arises when some subject touching the Constitution, laws, or treaties of the United States is submitted to the courts by a party who asserts his rights in the form prescribed by law.

By distinguishing between cases and controversies and defining cases to encompass claims of right under federal law by a single party, these nineteenthcentury thinkers imagined a much wider range of federal adjudication than jurists do today.

To be sure, the Marshall-Story definition of “cases” allows federal courts, where the matter arises under federal law, to exercise jurisdiction over a contested claim, one in which a party demands a remedy from an opposing party for the alleged violation of a federal right. Such a claim for redress of violations would clearly qualify as an assertion of one’s rights within the Marshall-Story paradigm. Yet the Marshall-Story definition would also encompass uncontested federal question claims. Their definition requires only the assertion of claims by a single “party” and says nothing about the joinder of an opposing party. In addition, the formulation requires only the assertion of one’s “rights,” and thus extends to claims in the nature of ex parte applications for pension benefits, naturalized citizenship, and other legal entitlements conferred by law. As both Marshall and Story understood, naturalization and other ex parte petitioners were empowered to assert federal

claims of right in an ex parte proceeding that did not entail any demand for redress from an opposing party.12

For modern readers, the power of federal courts to exercise authority over contested and uncontested “cases” might seem both illuminating and unsettling. On the illuminating side of the ledger, the recognition of judicial power over uncontested claims provides a solution to a serious problem of coherence in the workaday world of the Article III judiciary by explaining how such courts can hear both adversary disputes and certain ex parte and nonadverse proceedings. By recognizing ex parte proceedings as cases under federal law, the account of judicial power proposed in this book fits well with the text, structure, and history of Article III and maps onto the practice of the courts of admiralty and equity at the time of the framing. In addition, formulating a workable theory for the ex parte proceedings already heard by federal courts helps to situate those proceedings within the bounds of Article III and to provide a framework for evaluating their compliance with other applicable jurisdictional prerequisites.

On the other, more unsettling side of the ledger, few notions seem more central to our conception of Article III courts than that they serve as tribunals for the resolution of concrete disputes between adverse parties and perform their law-exposition functions best in that setting. Recognition of uncontested adjudication challenges this familiar conception of the Article III judiciary and forces courts and scholars to confront the inability of current doctrines, such as the adverse-party requirement and the injury-infact test for standing, to make room for uncontested, ex parte practices. Naturalization petitioners, after all, were not seeking redress for an injury inflicted by an opposing party, as standing law has come to require. In addition, the recognition of uncontested adjudication poses a potential risk to the rights of third parties, necessitating a cautious approach to such proceedings. Finally, one might worry that the formal recognition of the propriety of uncontested adjudication could encourage Congress to assign more such chores to the federal courts, burdening them with matters that would be better handled by administrative agencies and other non–Article III actors.

In accounting for uncontested proceedings and proposing to make a place for them on the docket of the federal courts, this book proposes to achieve greater coherence without calling for an unsettling transformation of the work of the Article III judiciary. Greater coherence starts with a clear conceptual distinction between the operative assumptions of contested and uncontested adjudication. Unlike ordinary litigation to resolve a dispute between

the parties over the application of (potentially contested) law to (potentially contested) fact, uncontested adjudication seeks to bring a new set of legal rights or legal status into being. This book will sometimes refer to the orders that emerge from uncontested adjudication as constitutive to describe their operation in creating a new legal relationships or investing parties with new legal rights. Consider judicial decrees that uphold an application for naturalized citizenship or that declare a formerly married couple to have been divorced in the eyes of the law. Such decisions usher into existence a new set of legal rights and relationships, transforming the individuals for legal purposes from a foreign national into a citizen and from members of a marital union into single persons. Applications for bankruptcy (and probate), if approved, similarly create or constitute a new legal entity, the bankruptcy (or decedent’s) estate. Moreover, such decrees may identify the trustee or executor of the estate—a party newly invested with certain rights and fiduciary responsibilities under the law. Much uncontested adjudication, in both state and federal courts, seeks to produce these constitutive results.13

A moment’s reflection reveals the difference between litigation that seeks to resolve a dispute over the scope or meaning of rights elsewhere conferred and uncontested adjudication that seeks to constitute or invest a party with a set of new legal rights. That distinction, though not entirely airtight, has proven helpful in clarifying the role of Article III courts in such cases as Spindel v. Spindel. There, the plaintiff brought suit alleging that her former husband induced her to marry him and then fraudulently procured a Mexican divorce. While the action, if successful, would deny legal effect to the Mexican divorce, the suit was not brought to secure a divorce (a constitutive decree). Rather, the point of the litigation was to test the validity of a legally significant act that had been performed under the laws of Mexico. The parties, in short, were in court to litigate their jural relationship, which was contested, rather than to alter that relationship through a constitutive act. The federal district court in New York accordingly agreed to hear the case as a contested proceeding within the court’s diversity jurisdiction.14

The distinction between contested matters and uncontested applications for the issuance of constitutive decrees provides an important key to federal judicial power. When the matter arises under federal law, federal courts can both resolve disputes and conduct uncontested proceedings with a view toward the issuance of constitutive decrees. Naturalization decrees and search warrants, and a wide range of antebellum federal proceedings, were understood to alter the legal status quo and invest the parties with new legal rights

often on an uncontested basis. As to matters of state law, by contrast, Article III limits the federal courts to the adjudication of controversies between specified opposing parties; that means the federal courts lack power to entertain uncontested state law applications for constitutive or investitive decrees. The district court in Spindel was applying this distinction, disclaiming any power to issue a state law divorce decree but reaffirming federal power to hear a diverse-party dispute over the validity of a decree issued by another tribunal.15

How, then, can we best incorporate the uncontested constitutive work of the federal judiciary into a jurisprudential framework that has grown increasingly focused on dispute resolution? Federal courts might continue to insist that, in matters governed by the rules of contentious jurisdiction, the parties present concrete disputes between genuine adversaries. But when Congress has acted within its Article I powers in assigning them uncontested matters to adjudicate, federal courts should follow a different set of guidelines or best practices. To be sure, courts should continue to apply elements, some familiar, some adapted, of the modern law of justiciability. Thus, while no adverse party need appear, the federal courts should exercise uncontested jurisdiction only if the party invoking federal power has a concrete interest in the recognition of a legal claim. The courts should do so, moreover, only where they have been called upon to exercise judicial judgment in the application of federal law to the facts and only where their decisions will enjoy the finality essential to the federal judicial role. Drawing on the Marshall-Story definition, this book uses the term “litigable interest” to describe the universe of contested and uncontested claims of right that qualify for Article III adjudication. Derived from practice, the litigable interest construct should help courts and scholars evaluate and refine our understanding of the judicial role in contested and uncontested proceedings. Chapter 11 provides a primer, exploring in greater detail the modern elements of uncontested adjudication.16

A word about methodology. This book begins by exploring the origin and early development of uncontested proceedings on the dockets of the federal courts. Subsequent chapters describe the surprisingly widespread presence of uncontested litigation on those dockets today. Having offered a catalog of uncontested proceedings, this book explains how Article III extends federal power to adjudicate such matters. In brief, this book distinguishes between “cases” and “controversies,” arguing that, as a matter of text and history, the provisions of Article III permit the adjudication of uncontested matters only

when (as with naturalization petitions) they arise as “cases” under federal law. If Article III cases do not invariably require contestation, controversies do. Indeed, Article III defines controversies by reference to the alignment of the adversaries; it provides a neutral federal forum for disputes between opponents, one of whom might face a risk of partiality if consigned to state court. Party opposition and contestation, in short, define federal jurisdiction over controversies. This book thus shows that while Congress can assign federal courts power to adjudicate matters of federal law on an ex parte or uncontested basis, uncontested adjudication of issues of state law must remain in the state courts.

In proposing a theory of Article III adjudication, this book takes account of what we know about the history and current practice of Article III courts. Among its striking implications, the proposed distinction between cases and controversies may help to explain two of the most puzzling features of federal jurisdictional law: the so-called domestic relations and probate exceptions to Article III. The subject of countless articles and judicial opinions, these exceptions posit that certain matters of state law lie beyond the judicial power of the federal courts. Today these exceptions primarily serve to limit the power of federal courts sitting in diversity, a disposition broadly consistent with this book’s proposed distinction between cases and controversies. Matters of domestic relations and probate arise under state law, often in connection with uncontested applications for constitutive rulings, such as the appointment of an estate administrator, or the adoption of a child. Without a controversy between properly aligned adversaries, federal courts have no power to adjudicate such state law matters. Chapters 3 and 4 explore the antebellum origins of the probate and domestic relations exceptions to Article III, suggesting that the absence of contestation may help explain their judicial recognition.

In the course of responding to critics, this book offers a new synthesis of the rules that govern access to federal court. The brute fact that federal courts have long entertained uncontested applications under federal law reveals serious problems with strict versions of the adverse-party and injury-in-fact rules that now govern the standing of plaintiffs to pursue claims in federal court. In keeping with its recognition that well-established historical practice can be “well-nigh conclusive” of the legitimate reach of judicial power, the Supreme Court should limit its adverse-party rhetoric and its standing doctrine to contested matters and rely instead on the more nuanced construct of the litigable interest to measure the right of parties to invoke the

jurisdiction of the federal courts. By allowing access to court for those who pursue a claim of right in the form prescribed by law, such a litigable interest construct would encompass the claims of both the injured plaintiff, seeking redress, and the ex parte petitioner. By capturing the full extent of federal judicial power, the litigable interest construct would also call for greater deference to congressional choices about what kind of litigation to assign to the federal courts.17

Finally, this book reflects on what the story of uncontested adjudication reveals about the way constitutional meaning changes over time. For much of the nineteenth century, courts and commentators accepted that federal courts could hear uncontested matters under laws adopted by Congress. In the late nineteenth and early twentieth centuries, seeking to narrow the role of the federal courts, jurists gave voice to the idea that the “case-orcontroversy” requirement of Article III serves to limit congressional power. Today, many observers view the words of Article III through the eyes of those twentieth-century jurists, a viewpoint that, as this book makes clear, poses a threat to much of the uncontested work of the federal judiciary. Indeed, modern critics often embrace the now-conventional case-or-controversy wisdom as they criticize non-contentious practices.

Chapter 12 reflects on the interpretive significance of this narrative of changed meanings. It appears that, with vague references to history, tradition, and the practices of the courts at Westminster, the Court and its originalist jurists have played a surprisingly active role in forging a body of constitutional law that has little connection to the original meaning of Article III. No one did more than Justice Scalia to rewrite the law of justiciability, invoking a case-or-controversy doctrine that first appeared in a circuit court opinion one hundred years after Article III became law. Such lapses from interpretive consistency do not necessarily disprove the project of originalism, but they do perhaps reveal the complexity of the task of constitutional interpretation. The challenge lies in articulating a constructive or synthetic form of constitutionalism that can take account of the old and the new. The idea of a litigable interest may help bridge the gap between yesterday and today, accommodating both the historical reality of uncontested adjudication and preserving much of what modern jurists have had to say about the (changing) nature of the judicial power.

This book proceeds in three parts. Part I recounts the history of uncontested adjudication in the federal courts. Drawing on a practice rooted in Roman law, Congress assigned various forms of uncontested or

non-contentious jurisdiction to the federal courts in antebellum America. A key feature of such jurisdiction was its provision for federal courts, perhaps acting on an ex parte basis, to issue constitutive rulings—rulings that changed the legal status quo and recognized the existence of a new set of legal rights. Such rulings included naturalization decrees, which established a new status of citizenship, as well as prize decrees (ordering a change in the ownership of property), warrants (legalizing an arrest, a search, or a seizure of property), and a host of other proceedings. Antebellum legal thinkers viewed these matters as uncontested “cases” arising under federal law and distinguished them from “controversies” between opposing parties that turned on principles of general common law. Building on the distinction between cases and controversies, nineteenth-century Americans understood, for example, that federal courts could hear uncontested matters of federal law (in bankruptcy) but lacked power to enter uncontested constitutive rulings as to matters of state law.

Part II tells a story of change. Beginning in the late nineteenth century, jurists and scholars reformulated the meaning of cases and controversies to introduce an across-the-board requirement of contestation. After this idea took root in the doctrine of the day, it became embedded in modern restatements of judicial power and came to threaten many settled forms of adjudication. These threats deserve to be taken seriously; scholars and jurists have questioned the constitutionality of a range of traditional adjudicative forms, including naturalization petitions, warrant proceedings, habeas petitions, bankruptcy proceedings, consent decrees, class action settlements, and petitions seeking forfeiture of certain property or the waiver of fees. Part II shows that, for these and other matters, the idea of contestation implicit in modern restatements of the case-or-controversy requirement serves as the basis for challenging the legitimacy of many longstanding forms of uncontested federal adjudication.

Part III offers a constructive new account of federal judicial power that seeks to harmonize the world of antebellum adjudication with the concerns that seemingly led to the modern case-or-controversy requirement. In place of the modern rules of standing to sue, which call for the identification of an injury inflicted by an opponent, part III would substitute the construct of a “litigable interest” to describe what a plaintiff must show to mount a claim in federal court. Importantly, though, by defining the litigable interest broadly enough to encompass uncontested claims of right by parties who seek a constitutive ruling, part III calls for some rethinking of the modern standing

and adverse-party requirements. Having proposed a new approach, part III responds to critics who continue to defend a watered-down version of the adverse-party requirement on historical grounds. These responses set the stage for a concluding reflection on what we can learn about constitutional interpretation from this book’s account of how a nineteenth-century practice of uncontested adjudication came to be seen as in conflict with modern jurisprudential commitments.

Two lessons stand out. First, the project of reclaiming the original understanding of our eighteenth-century Constitution must consider the words in light of the practices of the day. Parsing the words alone, however much one applies modern linguistic tools to their proper interpretation, cannot always recapture the understood operation of old provisions. Arguments that attempt to justify the modern case-or-controversy requirement by pointing to the language of Article III have little to recommend them. Second, the project of modern constitutional interpretation requires a measure of epistemic humility, a recognition that we have much to learn from the way practices have developed since the framing. Such humility calls for fair consideration of both the nineteenth-century practices that underlie uncontested adjudication and the twentieth-century concerns that led to the rise of the modern case-or-controversy dispensation. This book ultimately calls upon the Supreme Court to find a middle way, using the construct of the litigable interest to accommodate both the old and new worlds in a synthesis of the law governing access to federal courts. Even if the Court fails to embrace the proposed synthesis in terms and chooses instead to muddle through, as it has done in recent cases, this book offers a framework that can better explain the choices the Court faces, the conclusions it reaches, and the duties that uncontested adjudication properly casts on federal courts.

Notes

1. See United States v. Windsor, 570 U.S. 744, 757–60, 773–75 (2013) (invalidating Section 3 of the Defense of Marriage Act, 110 Stat. 2419, but rejecting the argument that the proceeding lacked the necessary adversarial quality to permit federal court adjudication). The quote appears in Aetna Life Ins. Co. of Hartford, Conn. v. Hayworth, 300 U.S. 227, 240–41 (1937). On the operation of ex parte proceedings before the FISA court(s), see In re Sealed Case, 310 F.3d 717, 737–41 (FISA Ct. Rev. 2002); Note, Shifting the FISA Paradigm: Protecting Civil Liberties by Eliminating Ex Ante Judicial Approval, 121 Harv. L. Rev. 2200, 2206–07 (2008). For the decision

upholding ex parte practice in naturalization proceedings, see Tutun v. United States, 270 U.S. 568 (1926).

2. Recognizing that party agreement posed a jurisdictional hurdle, the Court appointed an amicus curiae to argue that the United States had no standing to appeal from the decision below once it concluded, in agreement with Windsor, that DOMA was unconstitutional. But the Court rejected that argument. See Windsor, 570 U.S. at 757–60.

3. Quoted language appears in Windsor, 570 U.S. at 786 (Scalia, J., dissenting). Id. at 785 (“The question here is not whether, as the majority puts it, ‘the United States retains a stake sufficient to support Article III jurisdiction,’ the question is whether there is any controversy (which requires contradiction) between the United States and Ms. Windsor.” (internal citation omitted)). For the views of Marshall and Story, see chapter 4.1. See also Robert J. Pushaw Jr., Article III’s Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 Notre Dame L. Rev. 447 (1994).

4. Windsor, 570 U.S. at 780 (Scalia, J., dissenting). See also Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J.) (“courts of Westminster”); Willing v. Chi. Auditorium Ass’n, 277 U.S. 274, 290 (1928) (Brandeis, J.) (“English . . . courts”). See James E. Pfander & Daniel D. Birk, Article III and the Scottish Judiciary, 124 Harv L. Rev. 1613 (2011) (arguing that the focus of American legal scholars on Blackstone and the horizontal structure of the English judiciary may have obscured the extent to which the hierarchical structure of the Scottish judicial system influenced the structure of the Article III judicial system). Although the High Court of Chancery, which exercised the equitable jurisdiction of the Crown, sat in Westminster Hall, along with the courts of King’s Bench and Common Pleas, most civil law courts sat outside Westminster. Thus, the High Court of Admiralty, which followed civil law forms of action, sat at Doctors’ Commons in London, at least during the eighteenth century, and heard claims by civil lawyers trained at universities and admitted to the College of Advocates. See 1 William S. Holdsworth, History of English Law 547 (1926). The ecclesiastical courts, which handled probate and family law matters in the first instance, sat in dioceses throughout the realm. See R.H. Helmholz, The Oxford History of the Laws of England: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s, at 396–97 (2004) (describing “widely dispersed” jurisdiction over probate matters, with records held by “rural deans, archdeacons, and cathedral prebendaries”).

5. Ayestas v. Davis, 138 S. Ct. 1080 (2018). Chapter 7 treats Ayestas at greater length.

6. See Martin H. Redish & Andrianna D. Kastanek, Settlement Class Actions, the Caseor-Controversy Requirement, and the Nature of the Adjudicatory Process, 73 U. Chi. L. Rev. 545, 548, 552 (2006) (noting that neither courts nor scholars have devoted sustained attention to the theoretical underpinnings of the adverse-party requirement and describing the analysis of the foundations of the adverse-party requirement as one that had not been previously “undertaken by jurist or scholar”). On departures from the adversary ideal in bankruptcy, see Ralph E. Avery, Article III and Title 11: A Constitutional Collision, 12 Bankr. Dev. J. 397, 417 n.137, 449–50 (1996). Scholarly treatment of ex parte proceedings as entrenched and anomalous can be found in Redish & Kastanek, at 587 n.157. See also Michael T. Morley, Non-Contentious

Jurisdiction and Consent Decrees, 19 U. Pa. J. Const. L. Online 1 (2016); Michael T. Morley, Consent of the Governed or Consent of the Government? The Problems with Consent Decrees in Government-Defendant Cases, 16 U. Pa. J. Const. L. 637 (2014). Richard J. Fallon Jr. et al., Hart & Wechsler’s Federal Courts and the Federal System 86 (7th ed. 2015) [hereinafter Hart & Wechsler 7th] (expressing doubt as to the constitutionality of the ex parte practice of naturalization)

7. Lon Fuller, the scholar perhaps most closely associated with the adversary conception of the judicial role, explained that the system works best when the judge bases her decision “wholly on the proofs and argument actually presented to [her] by the parties.” Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 388 (1978). See also Stephan Landsman, Readings on Adversarial Justice: The American Approach to Adjudication (1988); Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 374 (1982). For a classic endorsement of inquisitorial civil procedure, see John H. Langbein, The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823 (1985).

8. The Court most frequently celebrates the adversary ideal in the context of criminal procedure. See Greenlaw v. United States, 554 U.S. 237, 243 (2008) (declaring the norm of the adversary system in civil and criminal cases to be one of reliance on the parties “to frame the issues for decision” and on courts to play “the role of neutral arbiter”); United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring) (implying that the rule imposing a procedural default may have a constitutional underpinning in that it distinguishes “our adversary system from the inquisitorial one”). Cf. Sims v. Apfel, 530 U.S. 103, 110–12 (2000) (distinguishing the adversary proceedings of courts from the inquisitorial approach of benefit agencies, such as the Social Security Administration, at which no party opposes the claim for benefits). One important exception—and one in some tension with the adversary ideal in criminal procedure— is plea bargaining, which disposes of 95 percent of federal criminal cases, and in which the prosecutor serves as the de facto judge of guilt or innocence. On the ex parte nature of guilty pleas, see chapter 2.5.3. See generally Howard M. Erichson, Mass Tort Litigation and Inquisitorial Justice, 87 Geo. L.J. 1983, 2010–15 (1999). Two exceptional features, American devotion to the jury trial and punitive damages, remain a sore spot for European countries confronting suits to recognize and enforce sizable American judgments. A third, the exercise of “doing business” jurisdiction over firms with their corporate seat elsewhere, was curtailed in Daimler AG v. Bauman, 571 U.S. 117 (2014). Quoted text appears in Amanda Frost, The Limits of Advocacy , 59 Duke L.J. 447, 460 (2009).

9. Redish & Kastanek at 587 n.157. Supporting their position with evidence from the practice of litigation as it has developed in the courts of the United States, Redish and Kastanek explain that party adverseness ensures a “well-developed record” on which to base a decision and conforms to a liberal democratic model of litigation that presupposes private control of the litigation process. Id. at 572 (describing party adverseness as part of the “DNA” of the adversary system of litigation in the United States). As a powerful restatement of the adverse-party requirement, the authors’ work has proven extremely helpful.