Monday, August 16, 2021

Beyond Default

Guest Blogger

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

Tara Leigh Grove

Early on in Civil Procedure, students learn an important lesson. If someone files suit against you, do not ignore it!  Why not? The federal court can enter a default judgment against you. That’s the law’s way of saying, “You lose because you refused to play the game.”

But wait: Article III gives federal courts jurisdiction over cases and controversies. So don’t lawsuits have to involve opposing parties, who file briefs and make arguments to the court?  Justice Scalia certainly seemed to think so. He argued in United States v. Windsor that “Article III requires not just a plaintiff (or appellant) who has standing to complain but an opposing party who denies the validity of the complaint.”[1] Yet default judgments suggest that our legal system does not always require two parties who battle out a matter in court. Indeed (as I have observed in past work), if “argument adversity” were a constitutional requirement—and default judgments were not permissible—defendants could defeat any federal lawsuit simply by refusing to show up.[2]

In Cases Without Controversies: Uncontested Adjudication in Article III Courts (2021), Jim Pfander shows us that such “uncontested” cases are not an oddity at all—and extend far beyond default judgments to a string of other contexts. With his characteristic attention to historical detail, and knack for bringing to life seemingly arcane procedural practices, Pfander teaches us that federal courts have long adjudicated cases where there is no “opposing party” in court: Naturalization cases, some bankruptcy and admiralty cases, applications for search warrants, and others, often lack a clear opponent.

Pfander’s historical account provides a helpful reminder about the constitutional text. Although we often talk about Article III as conferring jurisdiction over “cases and controversies,” the text does not actually say that. Article III simply provides a list of “cases” that federal courts can hear, followed by a list of “controversies.” So the text of Article III does suggest that federal courts could hear cases that do not qualify as controversies.

Pfander not only calls attention to this often-overlooked feature of our procedural practice but also seeks to provide a framework for understanding it. Not all uncontested cases look alike. Pfander helpfully divides uncontested proceedings into two camps (e.g., p. 48). One camp (what Pfander calls “ancillary proceedings”) “occur in [the] shadow of adverse-party disputation”—that is, there is at least a theoretical opponent, even if (as in default cases) that person does not show up in court. The other camp (“original petitions”) encompasses matters such as naturalization proceedings, where it’s harder to envision an opponent at all. Federal courts have jurisdiction over such uncontested original petitions, Pfander asserts, only when the matter raises a federal question.

In so arguing, Pfander sheds light on a seeming anomaly in federal courts jurisprudence: the so-called domestic relations and probate exceptions (that is, the federal courts’ refusal to adjudicate matters such as divorce or child custody). As Pfander acknowledges (p. 209), “the tendency of federal judges to shy away from [such] work signals to some a subtle form of gender bias.”[3] But Pfander’s analysis provides a more charitable explanation (p. 10): “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.”

Cases Without Controversies contains rich and important insights that will inform students and scholars of federal jurisdiction for many decades to come. I cannot—and won’t attempt—in this short blog post to articulate the immense value of the history that Pfander uncovers. I will simply note that Pfander’s argument shows how (contrary to Justice Scalia’s assertion) Article III does not require “an opposing party who denies the validity of the complaint.” It may be enough, it turns out, to simply have a plaintiff with a (federal) claim that could be redressed by the court. 

Tara Leigh Grove is the Charles E. Tweedy, Jr., Endowed Chairholder of Law and Director of the Program in Constitutional Studies at the University of Alabama School of Law. You can reach her by email at

[1] United States v. Windsor, 570 U.S. 744, 784 (2013) (Scalia, J., dissenting).

[2] See Tara Leigh Grove, Standing Outside of Article III, 162 U. Pa. L. Rev. 1311, 1336-38 (2014).

[3] See, e.g., Judith Resnik, ‘‘Naturally” Without Gender: Women, Jurisdiction, and the Federal Courts, 66 N.Y.U. L. Rev. 1682, 1750 (1991) (“[W]hen possible, federal courts divest themselves of ‘family issues.’”).

Older Posts
Newer Posts