Wednesday, August 11, 2021

Against Conflating “Cases” and “Controversies”

Guest Blogger

For the Balkinization Symposium on  James E. Pfander, Cases Without Controversies: Uncontested Adjudication in Article III Courts (Oxford University Press, 2021).

Fred Smith

In James Pfander’s Cases Without Controversies: Uncontested Adjudication in Article III Courts, he has achieved four remarkable feats. First, he has written a history of Article III requirements that covers multiple millennia, furnishing the reader with a lantern that illuminates important sites along the path that has led us to the “adverseness” and “injury-in-fact” requirements. Second, he has produced an explanatory account of longstanding practices that seem at odds with these oft-articulated, nearly ubiquitous doctrines of justiciability. Third, he offers a new doctrinal theory of justiciability that, unlike extant doctrine, comports with text, history, and the animating concepts that often accompany descriptions of standing. Fourth, he provides a general theory of how to integrate history into constitutional interpretation.

For a scholar as careful and imaginative as Pfander to provide any one of those four contributions would be a cause for courts and commentators to take note. That Pfander has produced all four contributions in one book makes it a must-read. This review will provide an overview of these four dimensions of the book, and offer one lingering question.

            First, in the way of history, Pfander illustrates the prevalence of non-adversarial invocations of judicial power in: Roman courts; subsequent civil law systems in continental Europe; and colonial practices in what is now the United States.  From Roman times, to the Middle Ages to the Enlightenment Era and beyond, courts entertained “voluntary” or “non-contentious jurisdiction.” (p. 17). And indeed “[n]on-contentious jurisdiction remains a feature of continental judicial systems today.”  (p. 21). Moreover, uncontested proceedings were a feature of federal jurisdiction in the early life of the republic, dating back to the First Congress, which gave federal Article III courts, among others, the power to naturalize citizens who met Congressionally prescribed requirements. 

American jurists viewed controversies and uncontested cases distinctly, cautioning that courts should play a special, inquisitorial role courts when “there are no hostile parties who can adjust or establish anything by way of stipulation.”  (p. 35). And they rejected the notion that other branches of government could overturn their decisions in non-contentious cases. See Hayburn's Case, 2 U.S. 409 (1792). But the idea that uncontested cases could be a part of the federal docket seems to have been without controversy for roughly the first one hundred years of the nation’s history. As Chief Justice John Marshall and Justice Joseph Story explained, “cases” represented a more capacious term than “controversies.”  Those jurists’ opinions reflected the view that on matters of federal law and admiralty, federal courts may decide cases even in the absence of controverted legal positions and oppositional interests. Only when dealing with other subject matters—like state law under diversity jurisdiction—does the Constitution demand that there be an actual “controversy” with adverse parties. 

            Second, Pfander offers an explanatory account of why, today, there is a yawning gap between some judicial practices—such as consent decrees, ex parte warrants, and default judgments—and well-accepted doctrines like the requirement that parties have adverse interests. He traces the development to the late nineteenth century, when Justice Stephen Field offered a revisionist and apparently idiosyncratic view of the word “case.”  On Justice Field’s account, the word “case… implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication.” (p. 89). And over the decades that followed, in cases that include Muskrat v. United States, 219 U.S. 346 (1911), Justice Field’s account gained prominence at Supreme Court. According to Pfander, Field’s account had particular resonance among jurists who, chastened by judicial excesses during the Lochner era, were sympathetic to limiting the role of federal courts with respect to challenges to the administrative state.

            Third, Pfander offers a theory of justiciability that eschews preoccupation with either adverseness or an injury-in-fact requirement.  After all, Pfander notes in paraphrasing Akhil Amar, “it takes a theory to beat a theory.” (p. 162). On Pfander’s approach, “the federal courts should exercise uncontested jurisdiction only if [1] the party invoking federal power has a concrete interest in the litigation of the legal claim,” [2] the court has been “called upon to exercise judicial judgment in the application of federal law to the facts” and [3] “their decisions will enjoy the finality essential to the federal judicial role.” (p. 9). Pfander also draws on Justice Marshall and Justice Story’s early descriptions of the word “case” to advance the concept of “litigable interest.”  Pfander defines “litigable interest” as a claim of right and title to sue, both of which Congress may authorize. He argues that Congress should get broad deference in creating avenues for federal courts to hear claims. In his view, this deference is especially important when Congress adopts a judicial cause of action as a means of enforcement against private actors, as opposed to challenges to the administrative state, where other separation of powers concerns may arise. “When Congress creates litigable interests in private regulatory programs, the Court has little justification for second-guessing that decision.” (p. 184). 

            Fourth, Pfander concludes by offering a theory of how to integrate history into constitutional interpretation. “How should we read and interpret our eighteenth-century Constitution as the pace of social and legal change makes it increasingly difficult to recover unwritten assumptions, tacit understandings, unspoken commitments, and background legal norms of the founding generation?” (p. 223) In answering this question, Pfander argues that modest, careful, assessments of litigation practices should co-exist with “arguments [arising] from longstanding tradition.” (p. 227). To this end, he advocates for what he calls “constructive constitutional history.” (p.228) “Constructive,” here, “means useful and forward-looking.” (p.228). With a degree of “[e]pistemic humility,” he advocates for a use of history that attempts to reaffirm traditional practices without unduly upsetting settled law.  (p. 231).   

            Pfander has offered a compelling exposition of gaps between history and the law of justiciability. Further, he has offered constructive ways to bridge those gaps, as a matter of theory and as a matter of practice. 

I was left with one lingering question: Why does the book implicitly accept as a given that all or almost all of standing doctrine should be housed in Article III? At some points in Pfander’s narrative, this choice is surprising given that, rightly in my view, Pfander contends that justiciability doctrines should be flexible enough to take into account important ways that judicial overreach can undermine the public interest.  He contends that when someone challenges a federal agency’s conduct, for example, a relevant consideration is whether there are others who could better advance the claim the litigant is making. (p. 185). But Pfander does not answer why considerations of that sort must be housed in the “litigable interest” standard or, more broadly, in Article III. Could some of these considerations be housed in the equitable standards that govern injunctions more generally?  And are some of them better understood as prudential concerns, rather than inexorable constitutional commands?

 Indeed, the more that justiciability doctrines are understood as constitutional mandates, the less flexibility those doctrines sometimes invite, and the less susceptible they are to Congressional refinements.  The diverging approaches of the majority and the dissenters in United States v. Windsor, 570 U.S. 744 (2013), offers an example of this phenomenon. The dissenters believed that the adverseness requirement inhered in Article III, and could not be disturbed. The fact that the litigants had the same legal positions was, in their view, fatal to the Supreme Court’s jurisdiction. The majority, by contrast, characterized the adverseness requirement as prudential, and accordingly assessed whether the underlying rationales that animated the requirement would be fulfilled by invoking the doctrine in that specific case.  Given that prudential doctrines offer the kind of flexibility that Pfander deems important, why not house some aspects of standing there?

            Perhaps the implicit answer to this question can be found in Pfander’s theory of “constructive constitutional history.”  His book is an attempt to, where possible, marry tradition and current practice. He is attempting to build up, rather than tear down. And therefore, his theory requires that one choose a doctrinal baseline from which to build up. For Pfander, this baseline apparently involves continuing to house the bulk of standing doctrine in Article III, a decision that arguably makes sound sense given the Court’s recently reaffirmed view that prudential limits on judicial power are disfavored.[1]  But it would nonetheless be helpful to hear more about why that should serve as the baseline. After all, for Pfander’s ideas to gain the force of law, courts must revisit important precedents. Something must come down, then, in order to build back up. Why shouldn’t the Court’s penchant for constitutionalizing prudential concerns be among the precedential structures that come down?

            In the end, Pfander’s book is fascinating and bold, offering an important blend of history and trenchant theoretical insights. Any scholar or jurist interested in the field of standing should read it. Indeed, I found myself wishing the Supreme Court had the book in hand before its recent opinion in TransUnion LLC v. Ramirez, wherein the Court steered the doctrine even further from the traditions that Pfander outlines. Pfander’s prescient book will be published, then, as the gap between history and doctrine continues to grow both at the expense of Congress’s proper role in our constitutional design, and at the expense of access to justice.

            At one point late in the book, Pfander casually remarks that this is an area of law that inspires “hope” and “fear.” (p. 185) (“The Court reaffirmed the injury requirement, but did less than was hoped and feared.”). My hope? That Pfander’s compelling work will help to narrow the gaps between history and practice, and between justice and law. 

Fred Smith is Associate Professor, Emory Law School. You can reach him by e-mail at

[1] Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167 (2014); Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014).

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