Tuesday, August 17, 2021

The Once and Future Federal Judicial Power

Guest Blogger

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

Kevin Walsh

The publication of Professor James Pfander’s Cases without Controversies should mark the beginning of the end of the case-or-controversy requirement as a one-size-fits-all approach to the fittingness of exercising the federal judicial power. This requirement is the organizing genus for a variety of justiciability doctrines that define the scope of the federal judicial power. But there’s a problem with defining this genus by reference to a single “case-or controversy” conception. Because “cases” and “controversies” are two different categories of judicial proceeding, as Pfander shows, it is wrong to run them together into one “case-or-controversy” requirement. Yet that is precisely what justiciability doctrine has done for the past several decades.

The category of Article III “cases,” Pfander contends, includes not only adverse-party disputes but also proceedings with no party on the other side of the “v.” (or, more accurately, proceedings with no “v.” at all, as in ex parte matters). “Cases” within this “non-contentious” jurisdiction of the federal courts have historically included petitions for naturalization and applications for warrants, as well as a variety of proceedings with ancestry in equity and admiralty. Contrary to today’s conventional wisdom (itself the product of a later tradition that did not begin to emerge until the late nineteenth century and developed through the twentieth), “cases” do not require adverse parties. All that is necessary, according to Pfander, is (1) a party’s submission, (2) of a claim of right, (3) in a form prescribed by law, (4) for final judicial determination. Pfander dubs this the Marshall-Story formulation because of its canonical formulations in Chief Justice Marshall’s opinion for the Court in Osborn v. Bank of the United States (1824) and Joseph Story’s Commentaries on the Constitution of the United States (1833).

Pfander recounts how the Marshall-Story formulation was capacious enough to include a variety of “non-contentious” proceedings for several decades and only began to come under pressure in the late nineteenth century. Pfander traces the injection of the adverse-party requirement into Article III’s “cases” to Justice Stephen Field. Writing as a circuit judge in In re Pacific Railway Commission (1887), Field held unconstitutional a provision of federal law that authorized the Pacific Railway Commission to invoke the subpoena power of federal courts in connection with investigations. The subpoena power could not be used in this manner, Field held, because a case requires “the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication.” Pfander artfully contrasts Field’s interpolation of an adverse-party requirement into Article III’s “cases” with former Justice Benjamin Curtis’s restatement of the Marshall-Story conception in lectures on federal jurisdiction published in 1880. The next portion of the book traces the eventual entrenchment of the adverse-party understanding, from Muskrat v. United States (1911) through the mid-twentieth century, with decisive roles played by Justices Louis Brandeis and Felix Frankfurter. 

Pfander’s rich history rewards the reader in matters great and small. At its widest, the book is an invitation to rethink the very understanding of what the office of an Article III judge is. More narrowly, Pfander offers practical insights into how to think about very specific questions like the availability of appellate review for ex parte trademark seizure orders or the denial of ex parte fee applications under the Criminal Justice Act or for PACER access. 

The book has a complicated relationship to contemporary constitutional originalism. On the one hand, appeal to Article III’s original meaning provides critical bite for Pfander’s recovery of “the lost history of the American acceptance of uncontested forms of judicial process.” On the other hand, the same recovery reveals that the Supreme Court has not done a particularly good job of carrying forward the broader original meaning of Article III “cases” that Pfander uncovers. “[W]ith vague references to history, tradition, and the practices of the courts at Westminster,” Pfander writes, “the Court and its originalist jurists have played a surprisingly active role in forging a body of constitutional law that has little connection to the original meaning of Article III.” If this is damning (and it is), it is not for mere hypocrisy but because the original meaning of Article III matters.

Were Pfander operating as an originalist, he might emphasize the importance of original law in connection with his arguments about the importance of legal pedigree in Cases without Controversies. But Pfander does not profess originalism. He describes his methodological approach as a form of “constructive constitutional history” that emphasizes the importance both of understanding the lawyers and judges of the early Republic as they understood themselves and also of integrating theory, practice, and text in a manner akin to the constructivism elaborated in more recent times by Professor Richard Fallon. 

Another way of understanding Pfander’s approach is as exemplifying a kind of traditionalism. In arguments among rival traditions, it takes one to beat one. In a critical mode, then, Pfander’s genealogy of the adverse-party requirement undermines the authority of the “traditional” framework for thinking about adjudication within which modern standing doctrine has become dominant. The genealogy accomplishes this by identifying the emergence of the adverse-party and injury-in-fact requirements as later narrowing moves within a broader tradition that reaches further back. By showing their origin and development within an earlier and more authoritative tradition that accounts better for the originating text of Article III, Pfander encompasses the current doctrinal formulation of these justiciability requirements within that broader tradition. 

To carry this broader tradition forward, Pfander offers the construct of a “litigable interest” in place of an across-the-board injury-in-fact requirement. According to Pfander, this construct “would encompass claims seeking redress for injuries in fact as well as by plaintiffs who assert rights in uncontested proceedings, who assert bounty claims, and who bring suit on behalf of the public in appropriate circumstances.” For the “form of law” in which public rights might be asserted, Pfander draws on the Roman law actio popularis as elaborated by the Scottish Court of Session. If this move sounds too adventuresome for readers of this short blog review hearing of this suggestion for the first time, all I can say as one who still finds it a little too creative is that Pfander deftly lays the groundwork for it by Chapter 10 of this book in which he explains it in more detail. 

The greatest contribution of this book, ultimately, is the widening of perspective that it offers with respect to sources for thinking about the nature and scope of the federal judicial power. In tracing non-contentious jurisdiction back to Roman law, through its European reception, its incorporation into the practice of the courts of Great Britain, and then its transmission into judicial practice in the colonies of British North America and states of the early republic, Pfander provides a powerful corrective for an overemphasis on England and the common law. In addition to highlighting civil law influences, as well as federal adoption of modes of proceeding in equity and admiralty jurisdiction, Pfander also  explains how ecclesiastical jurisdiction was transmuted into state practice but kept out of federal. His precise delineation of the probate and domestic relations “exceptions” for federal jurisdiction provides a narrowing counterpoint of Article III’s use of “controversies” that complements the broadening points made with respect to “cases.”   

A final perspective that Pfander’s description of federal judicial practice over time highlights is a vertical perspective. The student of federal judicial power who consistently sets his or her gaze too high will miss out on what happens more often in local federal courthouses throughout the nation. To be sure, there is no escaping the Supreme Court’s influence when it reiterates its injury-in-fact approach in rejecting jurisdiction over a suit brought to vindicate private rights, as a bare majority did this past Term in TransUnion LLC v. Ramirez. But the accumulation of many more mundane decisions by many more federal judges in a variety of non-contentious matters may amount to more of an influence on federal judicial self-understanding over time. For that to happen, though, judges need a theoretically sound, historically rooted, and doctrinally grounded conception of the power they exercise to administer legal justice as extending to “cases” that do not fit neatly into the dispute-resolution, law-elaboration, or prudential paradigms that too often frame accounts of the federal judicial power. In Cases without Controversies, Professor Pfander has done just that.


Kevin C. Walsh ( is Professor of Law at the University of Richmond School of Law


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