Friday, August 13, 2021

Pfander on “Cases” and “Controversies” and the Proper Role of the Federal Courts: Uncovering Important Lost History

Guest Blogger

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

Amanda L. Tyler

Jim Pfander’s extraordinary new book, Cases Without Controversies, comes at an auspicious time in the development of modern Federal Courts jurisprudence.  After all, just this past Supreme Court Term, a majority of five Justices, behind the pen of Justice Brett Kavanaugh, reinforced the notion that modern standing doctrine looks to history and tradition for its contours. Specifically, as Kavanaugh wrote in TransUnion LLC v. Ramirez [hyperlink:],

“history and tradition offer a meaningful guide to the types of cases that Article III empowers federal courts to consider.” And with respect to the concrete-harm requirement in particular, this Court’s opinion in Spokeo v. Robins indicated that courts should assess whether the alleged injury to the plaintiff has a “close relationship” to a harm “traditionally” recognized as providing a basis for a lawsuit in American courts.

More generally, Kavanaugh wrote, “under Article III, a federal court may resolve only ‘a real controversy with real impact on real persons.’” Note that these passages say two distinct things. First, to qualify for standing, a litigant must present a harm analogous to one that “traditionally” has qualified as sufficient to open the federal courthouse doors. Second, that harm must be presented in a posture that involves a “real controversy,” or, as Pfander phrases it, embody “the adversarial ideal.”

Pfander’s book upends the latter assumption and counsels a dramatic reconsideration of the former, particularly as it was applied in TransUnion. For that reason alone, it should be required reading for anyone who teaches, writes about, and/or engages with the Article III standing doctrine (say, for example, federal judges). As his meticulous historical march through the early days of federal court practice highlights, the traditional inquiry with respect to federal laws, just like the Fair Credit Reporting Act at issue in TransUnion, is actually quite simple. It asked only whether Congress created a right under federal law to which the party in question lays claim and whether Congress expressed a desire for the courts play a role in recognizing that right. Thus, citing numerous examples, including the 1790 naturalization statute that vested jurisdiction in the federal courts to entertain petitions for citizenship on an ex parte basis, Pfander explains that from the beginning, federal courts understood Article III’s concept of “Cases” to encompass “uncontested petitions to secure a right under federal law.”


Leaning hard on no less than John Marshall and Joseph Story, Pfander’s work reveals how for much of the early days of the Republic, when it came to matters of federal law, Congress exercised expansive power to declare new federal rights and courts exercised expansive and often ex parte jurisdiction to recognize said rights even in the absence of an opposing party. Thus, Pfander asserts, when a “matter arises under federal law, federal courts can both resolve disputes and conduct uncontested proceedings with a view toward the issuance of constitutive decrees.” But, he admonishes, Article III’s distinctive reference to “Controversies” does require adverse parties—in other words, when, in cataloguing the potential scope of federal court subject matter jurisdiction, Article III refers to “Cases” and “Controversies” separately, that is for good reason. The latter encompasses, on his telling, all matters predicated upon state law, and in that context, “federal courts lack power to entertain uncontested state law applications for constitutive or investitive decrees.” (This, he notes, explains among many other things, a good portion of the so-called domestic relations and probate exceptions to federal court diversity jurisdiction.)

All told, the story Pfander weaves is one in which federal law stands on special footing and Congress’s role in the creation of new federal rights is primary. And if Pfander is right about this—and he marshals a very great deal of historical support for the proposition—then the Court’s decision in TransUnion distinguishing between “concrete” and “statutory” harms and holding that the latter do not automatically constitute the former, seems at odds with the historical practice of the federal courts. To be more specific, in so holding, the TransUnion Court concluded that some of the purported members of a plaintiff class did not have standing to pursue their claims, even though TransUnion had put a label on their credit files that listed them as possible terrorists, and even though the Fair Credit Reporting Act created a right to accuracy in credit reporting procedures and established a right to sue. As Justice Thomas noted in dissent, it requires no great leap to conclude that any person whose credit file contained such inaccuracies should be permitted to sue. (“[O]ne need only tap into common sense to know that receiving a letter identifying you as a potential drug trafficker or terrorist is harmful.”) The key point here is that Congress created the underlying rights and established a cause of action.

If that’s right—and again, Pfander makes a powerful case that it is—then the increasing emphasis in the Supreme Court’s standing jurisprudence on history and tradition suggests that the Court ought to reconsider both its definition of harm sufficient to justify federal court jurisdiction, its narrow view of the scope of Congress’s power to establish judicially-enforceable rights under federal law, and its insistence on the adversarial posture of federal question cases. As Pfander informs the reader at the outset of the book, “[t]he key lies in recovering the lost history of the American acceptance of uncontested forms of judicial process.”

In an era in which Federal Courts jurisprudence is increasingly historically-inflected, Pfander’s book provides an important and heretofore neglected window into how the early federal courts thought about these questions. It should—and hopefully it will—prod a reconsideration by both courts and commentators as to how to conceive of the standing inquiry. It is also a cautionary tale of sorts. For when courts claim to adopt practices consistent with history and tradition, they need to approach the matter with a certain measure of humility. As one of my mentors liked to say, “history is messy.” Judges also should consult good historical legal scholarship on point. (They would do well to start with Pfander’s book.)

All this being said, there were a few matters on which I would have loved to hear more from Pfander. (Disclaimer: It is always unfair to tell a book author that their book should have been longer. But I’m going to do it anyway.) First on my list is a desire to hear more about the distinction he draws between “Cases” and “Controversies” with respect to the requirement of adverse parties. For example, being a Civil Procedure and Federal Courts professor like he is, I could not help but wonder why, if there was such a sharp dividing line between the two from early on—a divide built upon the understanding that “Controversies” encompassed cases controlled by state law—it was not until 1938 (the greatest year ever in Civil Procedure!) that the Supreme Court held in Erie Railroad Co. v. Tompkins that federal courts must apply state law in diversity cases as opposed to the Swift v. Tyson concept of non-supreme federal common law.

Another matter on which I would love to hear more is whether an expanded version of the Declaratory Judgment Act providing for uncontested jurisdiction over federal questions would pass muster under Pfander’s vision of what a constitutional “Case” entails. If so, one could imagine policy arguments favoring expanding the jurisdiction of the federal courts in just this way. To be sure, one could imagine policy arguments running the other direction as well. I would love to hear what Pfander thinks on both scores.

More generally, although Pfander takes pains to suggest that he is not promoting a wholesale reconsideration of federal court jurisdiction, the history he uncovers certainly suggests that both Congress and the courts should take a good hard look at current practices.

What I have always loved about Pfander’s work is how he consistently engages with legal questions with significant real-world impact. Cases Without Controversies is no different. But it comes at a time when many are concerned that the divide between academia and the real world has grown too wide. If his book fails to influence the development of standing jurisprudence going forward, then we will know that is indeed the case. And how unfortunate that would be.

Amanda L. Tyler is the Shannon Cecil Turner Professor of Law at the University of California, Berkeley School of Law. You can reach her by e-mail at 

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