Thursday, August 12, 2021

Reviving Justice Story: Pfanderian Cases and Article III

Guest Blogger

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

Diego A. Zambrano 

Cases Without Controversies is the book Justice Story would have written had he seen the development of Article III jurisprudence in the 20th century. Since he didn’t, Jim Pfander has taken on the task. And thank heavens that he has done that.
The book begins with a familiar story for students of federal courts: Article III of the Constitution extends the judicial power to a series of “cases” and “controversies.” Despite the framers’ use of two different words, modern lawyers have been told repeatedly that these words cover the same thing—a dispute among parties “having adverse legal interests.” Justice Scalia emphasized the adverse-party requirement as an “essential element of an Article III case or controversy” (p. 2). Hart & Wechsler makes the same claim (p. 223). Over and over lower courts and scholars have insisted that ex parte claims are not amenable to a judicial resolution except in extremely narrow circumstances.
Yet, as Pfander explains, this adverse-party requirement co-exists awkwardly with serious departures from the adverse ideal: bankruptcy administration, foreign intelligence warrants, habeas proceedings, and other non-contested claims. Seeing the contradiction between these ex parte proceedings and the adverse party ideal, generations of scholars have evaded the problem, calling it an “anomaly” or “aberration,” perhaps just a “vestige” of the past.
Pfander rejects this evasion and, instead, crafts a brilliant theory that explains non-adversarial proceedings as part and parcel of Article III. The book’s central argument is that Article III does, in fact, cover “uncontested matters” as “cases arising under federal law.” This means that a single party can assert “claims of right in an ex parte proceeding that [does] not entail any demand for redress from an opposing party” (p. 6-7). This is possible “so long as Congress acts pursuant to its enumerated powers in creating a right and assigns the federal courts final authority over applications by parties to claim such a right” (p. 164). This seemingly innocuous claim addresses some of the trickiest questions in the field of federal courts: Is there an inflexible injury-in-fact requirement? Are bankruptcy proceedings, prisoner petitions, settlement class actions, consent decrees, and warrants constitutional exercises of the judicial power? Does the term “cases” in Article III cover criminal and civil proceedings? Can courts presented with uncontested cases engage in inquisitorial adjudication? What was the deal with Hayburn’s Case? And is the domestic relations exception statutory or constitutional? The book says: No; yes; don’t worry about it; yes; judicial dignity not adverseness; both.
To prove its claims, the book draws on a range of history, early practice, and textual sources. Pfander gallops from Rome to France, Germany, England, and the Early Republic. We learn that Roman courts allowed parties to transfer property via a feigned case that would result in a consent judgment. French, Italian, and German courts still allow several forms of what they call “non-contentious jurisdiction.” And, as it turns out, non-contentious claims were common in the Early Republic, too.
Pfander wonderfully explains how early federal courts hosted non-adverse claims as a matter of course, especially pension claims, prize and salvage admiralty cases, warrant applications, and naturalization proceedings. These cases were almost never contested in the early 1800s. Yet judges did not call into question the judicial power over ex parte claims. Justices Marshall and Story, unlike Scalia and 21st century successors, recognized that non-adversarial claims could be amenable to judicial resolution under certain circumstances. Indeed, as the book argues, these cases were fundamentally judicial because they called on federal courts to recognize a claim of right created by federal law.
Despite this historic understanding, however, Pfander describes how early 20th century progressives—including Justices Brandeis and Frankfurter—embraced the modern adverse-party requirement in order to limit the power of federal courts. Fearful of an activist and conservative judiciary emboldened by Lochner and Ex parte Young, progressive reformers turned to any tools they could use to block aggressive federal courts. (Although, in Tutun v. United States, Brandeis upheld ex parte naturalization proceedings). Their reinvention of standing requirements, in turn, has left a long legacy. Instead of relying on Marshall and Story, modern day lawyers listen to Brandeis and Frankfurter. The book tells us, then, that we have lost our history.
With this background in place, Pfander displays his masterful ability to bring doctrinal history to every nook and cranny of Article III. For example, in Spokeo v. Robins (2015), Justice Thomas argued in concurrence that standing was limited in public actions to claims analogous to the “common law forms of action.” To an originalist, this might seem like a sensible claim. But Pfander points out that such an approach completely ignores the “adjudicatory practices of the civil-law-inflected courts of equity and admiralty” (p. 178). In those courts, of course, standing was much broader and more flexible.
One of the book’s best qualities is that it uses history to comprehensively tie several strands of jurisprudence together into a cohesive and parsimonious whole. With apologies to many, federal courts scholars sometimes create theories that conveniently leave out “outlier” and unexplained doctrinal “anomalies.” Cases Without Controversies refuses to do this, resolving every open question in its sight. Again, the main thesis bears repeating: Pfander argues that the word “cases” covered claims under federal (and not state) law either contentious or not, while the word “controversies” applied to diversity jurisdiction and similar adversarial proceedings. The book then uses this distinction to set a clear way forward: courts should “focus on whether the plaintiff has a litigable interest, rather than an injury in fact” (p. 175). These “litigable interests” exist when a party seeks redress both for injuries in fact but also in uncontested proceedings for a recognized claim of right. With that in mind, courts can resolve almost any puzzle related to Article III standing without leaving outlier categories.
Still, setting aside the impressive historical and doctrinal work on Article III, Cases Without Controversies is not just a book about standing. It is a fabulous and important book about constitutional history and the politically contingent evolution of the federal courts. It is also an incisive and convincing book on the role of original meaning, tradition, and judicial practices. All of these are crucial topics for our time. And especially so when the Supreme Court continues to issue decisions—see Transunion LLC v. Ramirez—that puzzle federal courts scholars. 
Before closing, let me offer some minor critiques of the book, mostly focused on the need for more clarity. To begin, while Pfander’s appeal to precedent, fit, and pedigree is appropriate, I think he misses the opportunity to focus on the consequences of his proposal. In his effort to bring a parsimonious synthesis of Article III text, history, and practice, the book does not fully address whether we would live in a better world with an open recognition of uncontested adjudications in our federal courts. Although Pfander clarifies that he is not arguing “that the legislature should assign more uncontested work to the federal judiciary” (p. 191) surely placing uncontested adjudication on firmer constitutional grounds might spur more Congressional activity. What problems might an open recognition of uncontested adjudication create? And how will judges adapt? Pfander mostly punts on these questions. He speculates that even if judges are not used to inquisitorial procedures they may improve in the long run (p. 191-215). But is there something normatively desirable about having Article III judges decide both contested and uncontested proceedings? Consider, for instance, that a proliferation of uncontested proceedings could increase our reliance on the judiciary, and consequently, the importance of inquisitorial skills. Would we have to start looking for different kinds of judges? Pfander only partly answers this question. One place to look for preliminary answers might be state courts, where standing is more flexible and judges are thus accustomed to handling administrative matters and even advisory opinions. The book’s reluctance to fully address consequences also comes through in the concept of a “litigable interest.” Pfander tries to specify when it would apply but still leaves a lot open to a future when “the Court could revisit” its current doctrines.
One feels that Pfander wants to make it possible for Congress to create uncontested adjudication but is not sure whether this will be a good thing on net. But as opponents of originalism embrace alternatives that are synthetic and ecumenical, it would have been a great opportunity for Pfander to show how consequentialism can work alongside text, history, and practice. Still, I can’t blame Pfander too much for this fault—federal courts and civil procedure scholars all operate under a general assumption that making our adjudicatory systems more legible and accessible will, eventually, enhance welfare.
Relatedly, another need for clarity comes near the end of the book, where Pfander alights on the concept of epistemic humility. He argues that even if the Court rejects the notion of a “litigable interest,” it can still accommodate our long tradition of uncontested adjudication. Doing so would “acknowledge[] that legal ideas must fit well within the surrounding judicial ecosystem” (p. 229) and that “pedigree, precedent, and fit” are fundamental to our constitutional tradition. Pfander warns that “stout-hearted originalists” (p. 230) and the “epistemically confident” (p. 231) will find it challenging to update based on new historical evidence. But, here again, I wished Pfander had further explained what a good constitutional Bayesian should do in the face of new historical evidence. How much weight should we assign a re-emphasis on admiralty proceedings in the early 19th century? Are there threshold levels of confidence that should make judges decide one way or the other? I think Pfander missed an opportunity here to provide a fuller description of his constitutional views.
Finally, as a civil procedure professor, I am happy to call for more attention to the effects of preclusion and compulsory joinder. Some of the danger in uncontested adjudication is its preclusive effect on third parties. On the one hand, a strong preclusive effect is probably unconstitutional as a denial of a non-party’s due process rights. On the other, a weak preclusive effect means that absent non-parties can constantly revisit uncontested adjudication. So perhaps there is little room for uncontested adjudication to operate even if we accept the book’s proposals. Pfander at first responds that for most single party claims to a federal right or benefit “third party rights are unlikely to be implicated” (p. 200). That sounds right to me. Pfander then also warns that to the extent non-contentious jurisdiction “does pose a potential threat to the rights of third parties . . . federal courts must be especially vigilant to ward off the entry of judgments that unfairly burden” (p. 200) absent parties. But in the small subset of cases that do pose a threat to third parties, I think Pfander is missing even better solutions. We could rely on more aggressive sua sponte assertions of Rule 19 necessary joinder, forcing uncontested applicants to join absent parties. Or, alternatively, rely again on Congress. Recall that Pfander’s main proposal is that Congress should have the leeway to create rights and assign federal courts the power to hear uncontested applications to such a right. Well, whenever Congress does create such a right, it could also do what it did in the 1991 Civil Rights Act: bar collateral attacks on uncontested adjudications where third parties had notice and an opportunity to object.   
Authors who produce iconic legal ideas are sometimes turned into adjectives. Pick up a Ronald Dworkin book and you’ll immediately feel the arguments as Dworkinian. Read a law and economics article and you might see a Coasean approach. Not for nothing this blog is named “Balkinization.” Pfander may have joined the list with this book. He has shown us, yet again, that he is a Jedi master of doctrinal history and federal courts. Opinions about Article III must now wrestle with powerful Pfanderian arguments about text, history, and practices surrounding the phrase “cases” and “controversies.” (If you think this new adjective doesn’t easily roll off the tongue, well, I don’t make the rules).
Diego A. Zambrano is an Associate Professor of Law at Stanford Law School. You can reach him by e-mail at

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