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 (kwalsh@richmond.edu)
is Professor of Law at the University of Richmond School of Law