Wednesday, August 25, 2021

Cases Without Controversies: An Author Responds (With Gratitude) (I)

Guest Blogger

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

James E. Pfander

            Let me begin with words of thanks:  to Jack Balkin for making space for this discussion; to the co-authors with whom I worked in making headway with some of these ideas (Dan Birk, Emily Damrau, and Michael Downey); and to the reviewers (Professors Fred Smith, Diego Zambrano, Amanda Tyler, Robert Pushaw, Tara Grove, and Kevin Walsh) for making time as summer winds down to engage so thoughtfully with my book, Cases Without Controversies.  I was delighted by the emerging consensus that Article III “cases” differ in important ways from “controversies”; that the difference may turn to some degree on the ability of the federal courts to entertain as “cases” uncontested application for the registration of claims of right under federal law; and that this understanding may raise questions about the Court’s case-or-controversy regime, including its insistence on adversarial disputes and concrete injuries in cases such as TransUnion LLC v. Ramirez 141 S. Ct. 2190 (2021).  For interested readers, the book’s discount code, ALAUTHC4, will moderate the (unfortunately steep) asking price.

            Grateful for their generous reactions to the book, I propose to focus these remarks on the reviewers’ questions and comments.  Three themes emerged: (i) How as a matter of constitutional theory can we integrate the book’s account of no-injury uncontested adjudication into the Article III case-or-controversy requirement?  (ii) Assuming that federal courts can properly exercise jurisdiction over uncontested “cases,” as the book argues, how should the federal courts and Congress manage such litigation? (iii)  How was this worked shaped by our community of scholars?  I tackle the first question in this post, and items two and three in a forthcoming post.

I. Article III Cases and Constitutional Theory 

I was struck by the response to the book’s account of the historical prevalence of uncontested adjudication. That history, when coupled with the textual distinction between cases and controversies, puts pressure on the Court, which continues as Tyler noted to gesture to the past in restating its injury and adverse party rules.  In the actual past, after all, nineteenth-century jurists viewed an application for naturalization as a “case” within Article III -- an uncontested claim of right in the form prescribed by law -- even though such cases did not feature injuries or opposing parties.  How then, reviewers wondered, could the modern Court continue to insist on such injuries in cases like TransUnion and why was the book less assertive about urging the Court to admit the error of its ways?

            Much may depend on one’s theory of constitutional interpretation and how much weight to ascribe to what sorts of history in crafting constitutional doctrine. For some readers, including perhaps Pushaw and Walsh, the history itself may prove dispositive, combining as it does both a proposed reading of the text and a set of practices under that text that help to liquidate its meaning.  For Grove and Tyler, history may count in constitutional interpretation, even though original meanings may not always deserve controlling weight.  For Smith and Zambrano, and of course for all of us, history may serve alongside other substantive commitments in giving content to constitutional guarantees.

            My goal was to persuade readers with different approaches to constitutional discourse that Article III distinguishes between cases and controversies.  That’s why I proposed to take account both of the rise of uncontested litigation in the first one hundred years after the Constitution was ratified (litigation that continues in different forms today), and of the modern case-or-controversy rule, which began slowly in the Gilded Age but can now claim its own 100-year history on an otherwise divided Supreme Court.  How to make a place for uncontested litigation in a federal judicial system headed by a Court that repeatedly restates and applies the injury and adverse-party rules?  Scholars understand that no-injury litigation had proceeded on federal dockets, in the form of prerogative writ claims to enforce public norms and private informer or qui tam suits to collect bounties from wrongdoers.  The Court grudgingly accepted qui tam in Vermont Agency (2000) but did so without suggesting that history alone could dislodge its case-or-controversy rule.

            My suggestion was to emphasize a concept, the litigable interest, broad enough to contain both uncontested claims and contested disputes over issues of federal law.  And to suggest that the Court might administer the litigable interest concept differently in uncontested and contested situations (much the way its rules of standing vary by claim and claimant).  I came to this synthesis on recognizing that however much I might disagree with the Court’s case-or-controversy dispensation, a catalog of uncontested practices from the past might fail to persuade the Court to confess error.  Naturalization was shifted to an agency more than one hundred years ago and privateering disappeared after the War of 1812, ending much private uncontested prize litigation in admiralty.  Zambrano rightly asks how one should weigh such proceedings in the interpretive process, now that they no longer occupy federal dockets.

            Rather than offer a detailed account of constitutional interpretation or specify a set of constitutional particulars to guide future adjudication, the book proposed a form of constructive constitutionalism in an effort to start a conversation about the meaning of Article III and the place of uncontested litigation on federal court dockets.  If the ideas in the book take hold, then others may join the discussion.  Perhaps adverseness has a more important role to play in constitutional litigation; that’s where the adverse-party rule emerged, as progressives sought to ward off contrived challenges to federal law.  Perhaps injury and redressability concepts continue to have value as the Court declines the invitation to rule on some of the policy detritus of the Trump years, such as the attempt to exclude non-citizens from the census count or the attack on Obamacare.  The litigable interest concept could make room for uncontested litigation and, at the same time, preserve a role for continued application of some justiciability rules in contested matters.

            Smith and other reviewers understandably called for more particulars, more clarity on what the constitutional baseline should be and how much deference the Court owes to Congress.  My own view is that the Court owes a great deal of deference to Congress; that’s the lesson of the nineteenth-century response to statutes that conferred an uncontested adjudicative role on the federal judiciary.  No-injury litigation did not, contrary to the TransUnion Court, arrive in the 1970s; it has been a part of our history from the beginning.  What has changed is the Court’s willingness to second-guess legislative choices on constitutional grounds.  With greater deference to Congress, many of the details would become matters of policy for the legislative branch to resolve rather than nice questions of constitutional law for the Court to parse.  It’s jarring to see the Court in a single Term confirm the viability of suits for nominal damages on the basis of their common law pedigree (Uzuegbunam) and condemn no-injury consumer litigation under a federal statute. 

            Identifying a bottom line that ties up loose ends may prove challenging.  By further relaxing or abandoning its case-or-controversy rules, the Court might rely on equitable discretion to achieve many of its avoidance goals.  But that, of course, would involve the exercise of discretion and prudence, two words that Lexmark (2004) sought to banish from the judicial lexicon.  Getting that larger story right would have required (as Tyler observes) a book that was longer and less focused on bringing the interpretive problems posed by uncontested adjudication to the attention of scholars and jurists.

II. Conclusion

Using synthesis to combine the old world of uncontested claims of right and the new world of redressable injuries can help solve interpretive problems, or so at least the final chapter of the book suggests.  But synthesis only makes sense if both pieces of the doctrine being synthesized have a claim to legitimate application.  I share the reviewers’ doubts about the wisdom of the Court’s case-or-controversy dispensation; the book proceeds on the assumption that, at least for now, it has become too entrenched to dislodge.

James E. Pfander is Owen Coon Professor of Law, Northwestern University Pritzker School of Law. You can reach him by e-mail at


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