"ORIGINALIST" JUSTICES AND THE MYTH THAT ARTICLE III "CASES" ALWAYS REQUIRE ADVERSARIAL DISPUTES.

• Author: Pushaw, Robert J., Jr.

CASES WITHOUT CONTROVERSIES: UNCONTESTED ADJUDICATION IN ARTICLE III COURTS. By James E. Pfander. (*) New York: Oxford University Press, 2021. Pp. ix + 263. $99.00 (Hardcover).

James Pfander provides voluminous historical evidence to support a thesis that shatters the modern Supreme Court's critical assumption, shared by almost all scholars, that federal litigation always must be adversarial. As Professor Pfander graciously acknowledges, he is building upon an idea that I originally proposed in a lengthy 1994 article (pp. 14 n.3, 149-150, 172 n.24). (2) Therefore, summarizing it will help place into context his important contributions to our understanding of federal court jurisdiction.

1. ARTICLE III'S CASE/CONTROVERSY DISTINCTION AND THE DUAL FUNCTIONS OF FEDERAL COURTS

   The modern Court has asserted that Article III, as originally understood, used the words "Cases" and "Controversies" synonymously to establish a requirement of "justiciability"--doctrines such as standing, ripeness, and mootness that "limit federal courts to adjudicating only concrete disputes between directly adverse parties." (3) All commentators accepted the Court's premise that "Cases" and "Controversies" were equivalent terms, even as they criticized the justiciability doctrines as incoherent and politically manipulable. (4) Rejecting the conventional wisdom, I made the following argument.

   Initially, Article Ill's text suggests that the different words "Cases" and "Controversies" must have been chosen to convey two distinct meanings, as becomes clear upon examining standard seventeenth- and eighteenth-century English legal dictionaries, abridgements, treatises, and judicial opinions. (5) Most obviously, a "controversy" is a dispute--a definition that has not changed for many centuries. (6) More technically, in 1787 a "case" referred to a court action requesting a remedy to vindicate a legal right. (7)

   Structurally, in Article III, "Cases" and "Controversies" introduce two separate categories of federal jurisdiction. (8) First, Article III lists three types of "Cases" (a word repeated three times), which are defined by subject matter: federal law, admiralty and maritime, and the international law affecting foreign ministers. (9) Second, the language shifts to "Controversies" to denote disputes involving specific parties (e.g., the United States, states, foreign nations, or citizens of those governments) in six situations, with no mention of the applicable law. (10)

   Historically, the Framers and Ratifiers, and the Constitution's early implementers in all three branches, perceived that this distinction highlighted the primary function that federal courts were expected to perform. (11) In "Controversies," independent Article III judges would mainly focus on resolving a dispute between adverse parties, such as citizens of different states, who could not trust politically dependent state tribunals to be neutral arbiters. (12) Any legal exposition--ascertaining and interpreting the law and applying it to the facts--would be merely incidental (indeed, state rather than federal law often governed). (13) An adversarial contest, then, was the sine qua non of a "Controversy."

   By contrast, a "Case" could involve--but did not require--a dispute. (14) Rather, a "case" arose whenever a "subject [was] submitted... by a party who assert[ed] his rights in the form prescribed by law," as recognized by Chief Justice Marshall and Justice Story (15) (who in turn relied on English luminaries such as Lord Mansfield and Blackstone). (16) One Anglo-American form was a plaintiff's claim of legal right in a private, common law suit against an adversarial defendant. (17) But other actions were "public"--brought pursuant to (1) a prerogative writ, which enabled courts to define the scope of government power, or (2) a statute authorizing an "informer" or "relator" to sue on the government's behalf to enforce a law, the violation of which had not individually affected the plaintiff, and to receive part of any resulting monetary judgment. (18) Thus, "cases" centered on law, not parties. Accordingly, Article III contemplated that in federal question, admiralty, and foreign minister "Cases"--subjects of unique national and international importance--a judge's principal function would be to expound the law. (19)

   Wholly absent in the Convention and Ratification debates, and in opinions during the Court's first century, was any mention that Article III "Cases" required an adversarial dispute. On the contrary, federal courts routinely decided uncontested claims in areas like naturalization, bankruptcy, consent decrees, default petitions, and criminal pleas--a practice that has continued to this day. (20) The Court has never satisfactorily explained how this unbroken line of practice and precedent can be squared with its justiciability decisions.

   My proposed distinction between "Cases" and "Controversies" supported a new approach. (21) Modern doctrines of standing, ripeness, and mootness confine federal courts to resolving live, concrete disputes, and therefore make sense as applied to Article III "Controversies." (22) Conversely, the justiciability doctrines should be reformulated as to "Cases" to capture their essential law-based nature. (23)

2. PFANDER'S "LITIGABLE INTEREST" APPROACH

   Professor Pfander's independent research has confirmed two of my key insights. First, as originally understood and long implemented, Article III distinguished "Cases" from "Controversies" to convey important differences in meaning (pp. 5-12, 18-19, 23-25, 61-83, 143, 148-49). Second, "Controversies" were disputes between parties (pp. 5, 9-10, 12, 73-79, 148-49). We diverge only insofar as he "takes [my] suggested definition of 'cases' in a new direction, emphasizing less the power of federal courts to expound the law than their power to adjudicate claims of right assigned to them by Congress despite the lack of a controversy" (p. 150). Pfander supports this conclusion from an original historical angle.

   1. UNCONTESTED ADJUDICATION IN ANGLO-AMERICAN HISTORY BEFORE 1887

      Pfander demonstrates that English, Colonial, and early state and federal courts could adjudicate a plaintiff's claim of any legal right--a "litigable interest"--which could, but need not, involve a dispute with an adverse defendant (pp. 1-11, 19, 181-82). Accordingly, jurisdiction could be either "contentious" or "noncontentious" (pp. 4-5, 19-23). The paradigm of the former was English common law, in which a plaintiff sought a judicial remedy for violation of a contract, tort, or property right by a defendant who contested the claim (p. 19). However, England also incorporated elements of the European civil law system, tracing back to Roman law, which recognized several types of noncontentious jurisdiction (pp. 17-24, 166). In such cases, a court decided a petitioner's request (typically ex parte) for a "constitutive" order, which recognized either a legal right or a new legal status or relationship in areas such as family law, property registration, probate, bankruptcy, naturalization, admiralty (particularly the condemnation of prizes taken by licensed privateers), and various equity matters (pp. 4-12, 19-23, 42, 61-64, 182). In the other main type of nonadversarial proceeding, judges often entertained ex parte petitions for prerogative writs (pp. 110-13).

      Finally, British courts recognized two kinds of public law actions in which plaintiffs did not have to show that a defendant's legal violation had caused them an individual physical or monetary injury. The first were informer and relator suits (pp. 224-25). Second, courts allowed private parties to bring public actions to enforce rights shared by the entire community if a violation might otherwise not be adequately remedied (pp. 176-81). (24)

      American colonial and state courts adopted, and adapted, all of these forms of action (pp. 5, 18-19, 23-25). Hence, by extending "judicial power" to "Cases" (particularly those arising under federal statutes and in admiralty), the Constitution's drafters almost surely intended to continue to permit plaintiffs with a "litigable interest" to sue, regardless of whether they had suffered a particularized injury inflicted by an adverse defendant (pp. 5-6, 18, 25, 73, 166-68). Of course, many "Cases" would be contentious. So would all "Controversies," which were disputes between opposed parties (pp. 5, 9-10, 12, 73-75, 148-49, 165, 168, 193, 238).

      The First Congress, which included many prominent Framers and Ratifiers, removed any doubt about the validity of uncontested adjudication by routinely authorizing federal courts to engage in it to secure petitioners' federal law rights (pp. 5-6, 25, 33-59). Moreover, the Court never questioned the constitutional propriety of such proceedings, which culminated in constitutive decrees that established new legal rights in individuals or new relationships (pp. 8-9...