Thursday, August 26, 2021

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

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 

            In my last post, I responded to comments on the problem of how best to read Article III in light of the evidence that uncontested adjudication has had a place on federal dockets throughout the nation’s history.  While I would welcome broad re-thinking of the Court’s justiciability jurisprudence, the book also suggests ways in which the Court might integrate uncontested adjudication into the rules that now govern access to federal court.

            In this post, I respond to the reviewers’ questions about how to manage uncontested adjudication, once federal courts come to recognize that it may deserve a more thoughtful reception than it often receives under the current case-or-controversy dispensation.  I close with a few remarks on the importance of scholarly community as we work to understand the Court and the Constitution it elaborates.

I. Managing Uncontested Adjudication

As befits a group with serious procedure chops, reviewers raised questions about how to manage uncontested adjudication. The book’s chapter eleven wrestled with that question, explaining that a host of uncontested matters continue to appear on federal dockets and suggesting a set of best practices that courts called upon to conduct uncontested adjudication might consider.  Thus, the book suggests that courts take up uncontested chores only when their work satisfies the Article III finality requirement and only when Congress has so directed.  Courts should also be wary of the potential impact on non-parties, just as European courts have moderated reliance on non-contentious jurisdiction to protect due process rights. Finally, courts should develop procedures that allow them to secure a stronger factual record on which to base decisions, perhaps taking a page from the practice of some inquisitorial courts.  All of these suggestions remain, in some sense, tentative and situation-specific; my goal again was to defend the legitimacy of the enterprise from constitutional attack and to start a discussion of how federal courts might proceed in a world where uncontested matters have a place on federal dockets.  As Walsh observes, “judges need a theoretically sound, historically rooted, and doctrinally grounded conception of the power they exercise to administer legal justice” in the many, seemingly mundane uncontested matters that come before them.

The variety of uncontested proceedings complicates the answer to Zambrano’s good questions about preclusion and joinder.  Naturalization decrees immediately affected only the rights of the new citizen.  But others were affected by the new citizen’s expanded rights to vote and to own real property, and by the citizenship also conferred on children.  Were the interests of other voters concrete enough to deserve representation in naturalization litigation, or better addressed by Congress? What about the interests of future claimants to a parcel of land, who might wish to secure title to property by denying the effectiveness of the naturalized citizenship of the record owner?  Obviously, those interests would be extremely hard to identify, just as the varying interests in a foreign vessel claimed as prize in America were difficult to identify and bring before the court.  Nineteenth-century jurists solved these problems by treating at least some uncontested matters as in rem proceedings; they did not require personal service upon and notice to all potentially interested parties.  That treatment, in turn, created the sort of due process and fairness concerns that have led the Court to question in rem process when interested parties can be readily identified and other more effective forms of notice are available. Due process can be situation-specific.  But I can say that where nineteenth-century courts did not require notice, they were willing to accord preclusive effect to their decrees.  Thus, both naturalization and prize decrees enjoyed a measure of preclusive effect, even as to those who did not appear in the proceeding.

Perhaps that can help answer Tyler’s intriguing question about an uncontested declaratory judgment proceeding.  Today, of course, the relevant statute provides that federal courts can issue declaratory judgments only in “cases” of actual controversy; the statute contemplates a contested or contentious proceeding.  Could one imagine an uncontested declaratory judgment?  Yes, and here again, the naturalization decree provides a serviceable example.  Many constitutive decrees, such as naturalization, change the rights of a litigant through judicial say-so, that is, through the application of law to fact and entry of a judicial order upholding the claim of right.  But when the decree immediately affects more than one party, such as a custody or adoption decree, we expect the affected parties to appear before the court, even where they agree about the proposed disposition.  If the declaratory judgment were to affect more than the rights of the petitioner, then we would expect the courts to demand the representation and appearance of other parties.  A court might issue such a declaratory judgment upon agreement of the parties, just as it might enter a consent decree.  But (as we learned long ago) courts should refrain from permitting a feigned or nominally agreed upon disposition to change the rights of those not before the court. 

In suggesting a few best practices, I do not urge Congress to rely more broadly on uncontested forms of adjudication.  In answer to Zambrano’s sensible request for a better account of the normative pros and cons of uncontested adjudication, I would say that agencies can now handle much of the uncontested work that once found its way to federal dockets and can do so more cheaply than federal courts.  Congress, like the executive, has come to value the federal judiciary’s role as the independent exponent of constitutional values and interpreter of federal statutes and will hesitate before burdening those important roles with work that other tribunals might handle just as well.  Still, Congress does from time to time assign uncontested work to the federal judiciary, often work adjacent to the dispute-resolution role.  Thus, PACER fee waiver claims, victim rights’ petitions, and applications for federal financial support of habeas litigation (the form of uncontested litigation at issue in Ayestas v. Davis) all sensibly go to federal judges as a matter of convenience.  FISA warrant applications go to federal judges because Congress wanted an independent judicial assessment of such foreign intelligence surveillance.  I would leave the normative balance to Congress, confident that the judiciary’s concerns will gain a hearing in the legislative process.

II. Working in a Community of Scholars

As Pushaw’s comments make clear, no scholar works in isolation and I owe him and the other reviewers for their thoughtful engagement with the book’s ideas and many contributions to our understanding of the words of Article III.  Pushaw and I go back to the early years of our careers when Akhil Amar put us in touch to discuss works in progress. Amar emphasized the Marshall-Story distinction between cases and controversies as the basis for limits on Congress’s jurisdiction-stripping authority; I found the distinction helpful in exploring the scope of the Court’s original jurisdiction and state suability (Pfander, 82 Cal. L. Rev. 555 (1994)); Pushaw questioned the Court’s blending of the terms in a so-called case-or-controversy requirement to govern issues of justiciability.  See Pushaw, 69 Notre Dame L. Rev. 447 (1994).  Pushaw’s comments in this mini-symposium and the work of the scholars he credited in turn (Berger, Fletcher, Jaffe, Lee, Meltzer, Winter) remind me of the debt I owe to those who have explored this terrain before me.

Pushaw and I agree that cases differ from controversies.  As for controversies, the federal courts were expected to act as neutral umpires in resolving disputes between parties aligned as Article III specifies.  (As Tyler observes, I sometimes describe controversies as based on state law, as they often are today.  But it’s really the absence of any federal law and the presence of proper party alignment that brings jurisdiction over controversies into play, jurisdiction that would have often implicated general common law back in a pre-Erie world.)  In cases, federal courts can certainly play this dispute-resolution role.  But they can also do something more.  Pushaw highlights their distinctive role in the exposition of federal law.  69 Notre Dame L. Rev. at 449, 464, 496.  My account emphasizes federal judicial power to issue constitutive decrees in response to a claim of right in controversy-free proceedings under controlling federal law.  That’s why I said in the book that I meant to take Pushaw’s suggested distinction between cases and controversies in a new direction. Of course, we might both be right. 

III. Conclusion

In the end, I am gratified that Pushaw has embraced my suggestion that we can understand Article III cases to include both contentious disputes over federal law and uncontested applications to secure constitutive decrees.  My gratitude extends to others (very much including Smith, Zambrano, Tyler, Grove, and Walsh) whose work has taught me so much and whose comments here have sharpened my thinking about how to make sense of the words in Article III.  I feel fortunate indeed to have found my way to a community of scholars with whom I can work on problems of federal judicial power that seem as pressing now as they were when Marshall and Story defined the case (but not the controversy) as a claim of right, implicating a federal subject, in the form prescribed by law.

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


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