INTRODUCTION I. NON-CONTENTIOUS PROCEEDINGS IN THE FEDERAL COURTS A. Government Benefits 1. Naturalization Proceedings 2. Revolutionary War Pension Claims and Hayburn's Case 3. Remission and Mitigation of Forfeitures B. Transfers of Property 1. Prize and Salvage Cases 2. Trademark Seizure Orders C. Bankruptcy 1. Initial Appointment 2. Administrative Fees 3. Contract and Plan Approval D. Government Investigations 1. Warrant Applications 2. FISA Warrants 3. Administrative Subpoenas 4. Immunized Testimony E. Prisoner Litigation F. Public and Private Dispute Resolution 1. Default Judgments 2. Uncontested Equity Receiverships 3. Consent Decrees 4. Guilty Pleas 5. Crime Victims' Bights 6. Class-Action Settlements 7. Letters Rogatory II. SCHOLARLY REACTIONS TO EX PARTE AND NON-CONTENTIOUS PROCEEDINGS A. Isolated Departures and Historical Aberrations B. Tutun v. United States and the Possible Adversary Theory III. CONTENTIOUS AND N 0 N-CO NTE NTIO U S JURISDICTION A. The Historical Pedigree of Non-Contentious Jurisdiction 1. Roman Law 2. The European Reception of Non-Contentious Jurisdiction 3. Non-Contentious Jurisdiction in England and America B. The Adverse-Party Requirement Reconsidered 1. Cases, Controversies, and the Judicial Power 2. Hayburn's Case and the Lessons of History 3. Feigned Cases and Adverse Parties IV. TOWARD ATHEORYOF NON-CONTENTIOUS JURISDICTION A. The Theory Sketched 1. Original and Ancillary Non-Contentious Jurisdiction 2. The Elements of Non-Contentious Jurisdiction 3. Other Requirements for the Exercise of Non-Contentious Jurisdiction B. The Theory's Implications for the Article III Injury-in-Fact Requirement and Separation of Powers C. The Theory Applied: Judicial and Administrative Work 1. The Distinction Between Courts and Judges 2. The Probate Exception 3. The Extradition Puzzle 4. FISA Courts 5. Administrative and Judicial Classification a. Circuit Judicial Councils and Docket Assignments b. Administrative Management of Fee Petitions c. The Classification Debate in Printz v. United States CONCLUSION INTRODUCTION
For students of federal jurisdiction, the Supreme Court's encounter with the adverse-party requirement in the Defense of Marriage Act (DOMA) case, United States v. Windsor, was both overdue and disappointing. (1) The Court has long held that federal courts can hear only "definite and concrete" controversies that touch upon "the legal relations of parties having adverse legal interests." (2) But the Court has failed to provide a coherent account of this "adverse-party requirement" or of how such a requirement can coexist with a variety of nonadverse or ex parte proceedings that have worked their way onto the docket of the federal courts. Since the 1790s, Congress has assigned pension claims, naturalization proceedings, and a surprisingly broad range of other matters lacking an adverse party to the federal courts. For example, the Foreign Intelligence Surveillance Act of 1978 (FISA), a subject of recent controversy, requires the government to obtain an ex parte federal-court order to conduct certain kinds of electronic surveillance but makes no provision for an adverse party ever to contest the government's application. (3) Aside from a decision some ninety years ago addressing the power of the federal courts to naturalize aliens, (4) the Court has failed to wrestle with the constitutionality of non-adverse and ex parte proceedings.
Windsor, unfortunately, did little to clarify matters. Doubts as to the presence of adverseness 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. (5) Yet the opinion by Justice Kennedy for a five-justice majority announced that the federal government's agreement with Windsor did not deprive the Court of power to reach the merits. (6) For the majority, the requirement of "concrete adverseness" was a prudential element of standing doctrine, one that appropriately informed the Court's discretion but did not inflexibly compel party opposition as a jurisdictional prerequisite at every stage of every case. (7) The Court did not offer much by way of support for its conclusion that such a requirement existed or, if it did, why it might merely be a matter of prudence; the Court took no notice of the many instances in which the federal judiciary, without first consulting constitutional limitations or prudential considerations, proceeds in the absence of party adverseness. (8)
Justice Scalia's sharply worded dissent also added little to our understanding of the adverse-party requirement. To be sure, Justice Scalia viewed the rule not as a "'prudential' requirement that we have invented," but as "an essential element of an Article III case or controversy." (9) 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. (10) But Justice Scalia did not address the mean-meaning of Article Ill's grant of "judicial power" or of its reference to "cases"; both terms have suggested to others, including possibly Chief Justice John Marshall and Justice Joseph Story, that federal courts may do more than simply resolve disputes between adversaries. (11)
As for history, Justice Scalia depicted Article Ill's case-or-controversy limits as reflecting the traditional notions of adjudication inherited from early Americans and our "English ancestors," (12) an echo of Justice Felix Frankfurter's earlier contention that the federal judicial power extends only to the forms and actions of the English courts at Westminster. (13) This emphasis on England and the practice of the (mostly common-law) courts at Westminster, however, not only overlooks the fact that the English Court of Chancery, a non-common law court sitting at Westminster, exercised jurisdiction over certain ex parte and non-adverse matters; it also tends, in its focus on the common law, to obscure the range of alternative sources on which the Framers drew in crafting Article III. (14) 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. (15) Justice Scalia's common-law traditionalism thus brought us little closer than did Justice Kennedy's prudentialism toward resolving the tension between the theory of the adverse-party requirement and the reality of federal court practice.
Few scholars have attempted to address the tension by exploring the textual and historical underpinnings of the adverse-party requirement. (16) Fewer still
Westminster...."); see also Willing v. Chi. Auditorium Ass'n, 277 U.S. 274, 290 (1928) (noting in Justice Brandeis's majority opinion that a resort to equity when no case or controversy existed was "a proceeding which was unknown to ... English ... courts"). have considered the requirement in light of the non-adverse practices of the federal courts. To be sure, some students of constitutional history have called attention to certain early ex parte or non-adverse proceedings that appear very much at odds with an adverse-party requirement. (17) Others have identified more modern examples of departures from our adversary ideal, such as certain actions in bankruptcy administration, consent decrees, and settlement class actions. (18) 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. (19) Yet, to our knowledge, no one has conducted a comprehensive assessment of the non-adverse proceedings of the federal courts or attempted to situate them within a coherent theoretical framework. Instead of attempting to develop a theory that can account for the federal courts' willingness to hear both adverse-party disputes and non-adverse proceedings, most scholars who have confronted the issue tend to treat the non-adverse practices they discover as aberrational vestiges of an earlier day, (20) or as anomalies that have become too entrenched to question. (21)
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. (22) This passivity contrasts with the more active role of judges 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 on the sidelines to some degree, particularly during the fact-finding process.
Although the contrast between the Anglo-American adversary system and the inquisitorial systems of continental Europe may be slightly overdrawn, (23) American lawyers and judges are steeped in the adversarial ideal, (24) and courts in the United States mainly continue to profess adherence to the adversarial model. (25) Indeed, one can sense that the adversary ideal has come to be per ceived as yet another feature of American exceptionalism--that is, as a deliberate departure from and improvement upon the practice of European countries of which Americans should be justly proud. (26) As Amanda Frost has noted, inquisitorial judging has become something of an "epithet among American...