Sunday, August 15, 2021

Unearthing The Historical Meaning Of Article III “Cases”: The Value Of Nonpartisan Originalism

Guest Blogger

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

Robert Pushaw

Jim Pfander has marshaled substantial historical evidence that reinforces a thesis I set forth long ago:  The modern Supreme Court has erroneously asserted that Article III, as originally understood, used “Cases” and “Controversies” synonymously to establish a requirement of “justiciability” that limits federal judges to deciding disputes between adverse parties.  Article III’s Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 Notre Dame L. Rev. 447 (1994).  My linguistic and historical analysis demonstrated that only “Controversies” (e.g., between citizens of different states) necessarily involved such a dispute, which could be fairly resolved only by independent federal judges.  By contrast, “Cases” were judicial proceedings in which a party asserted his rights in a form prescribed by law, which could – but need not – feature an adversarial contest.  Thus, in “Cases” the federal courts’ main role would be interpreting and applying federal law, not umpiring disputes.  Finally, I emphasized Article III’s structural division:  initially listing three types of “Cases” defined by subject matter – (1) the federal Constitution, statutes, and treaties, (2) admiralty jurisdiction, and (3) the international law affecting foreign ministers – then abruptly shifting to “Controversies” to denote six disputes involving specified parties. 

Professor Pfander’s exhaustive research has led him to agree with me on all but one point. He accepts my definition of “Cases,” but not my conclusion that the Framers chose that word primarily to signify that federal judges’ key function would be expounding the law.  Rather, Pfander argues that Article III’s drafters, following English and American legal tradition, used “Cases” as an umbrella term that encompassed all “litigable interests”:  Claimants could bring any recognized court action to vindicate their legal rights.  Such jurisdiction could be “contentious,” as exemplified by common law suits in which a plaintiff alleged the violation of a contract, tort, or property right by an adverse defendant.  However, England also incorporated elements of the European civil law system dating back to Roman law, which allowed several types of “noncontentious” jurisdiction.   In such cases, a court decided a petitioner’s request (typically ex parte) for a “constitutive” order, which recognized either a legal right or a new legal status in areas such as family law, probate, bankruptcy, naturalization, admiralty, and various equity matters.  In the other main type of non-adversarial proceeding, judges often heard ex parte petitions for prerogative writs.


My article did briefly note that federal courts have always decided uncontested claims in “Cases” concerning naturalization, bankruptcy, consent decrees, default petitions, criminal pleas, prerogative writs, and relator and informer actions.  Professor Pfander’s painstaking research has unearthed the deep historical roots of such noncontentious jurisdiction.

            His other big intellectual contribution is showing that the First Congress and its successors had no doubt about the legitimacy of uncontested adjudication, which they frequently authorized.  Examples include federal statutes permitting ex parte proceedings concerning (1) naturalization, (2) government officials’ requests for warrants, (3) veterans’ pension applications, and (4) in rem admiralty and maritime jurisdiction.  Early federal courts also decided cases that had begun with an adversarial dispute which had eventually become nominal (e.g., default judgments, equity receiverships, and guilty pleas).  Moreover, Congress provided for prerogative writs, informer and relator suits, and certain public actions to enforce widely shared federal rights.  Significantly, the Court never suggested that any noncontentious jurisdiction was unconstitutional.  Finally, Pfander stresses that antebellum federal courts exercised such jurisdiction only in Article III “Cases” arising under federal statutes or admiralty and maritime law – never in Article III “Controversies” that raised state law issues. 

He then describes how, in the late nineteenth century, a few Justices began to question the propriety of deciding “Cases” brought by plaintiffs whose claims were uncontested.  Eventually,  Justice Frankfurter (1939-1962) persuaded the Court to reinterpret Article III’s “Cases” and “Controversies” language as mandating justiciability doctrines like standing, based on the notion that English historical practice had confined judges to adjudicating only genuine disputes between adverse parties.  This new idea prompted numerous attacks on the constitutionality of traditional forms of noncontentious jurisdiction, which the Court has usually rejected on stare decisis and pragmatic grounds.  Nevertheless, Professor Pfander fears that the post-Warren Court’s increasingly stringent application of the Article III “case or controversy” requirement might lead to the invalidation of many kinds of uncontested adjudication.

He recognizes that the Court will not overturn its entrenched precedent, which began as an effort to address practical problems – such as burgeoning federal dockets – that are ongoing.  To integrate Article III’s original meaning with modern case law, Pfander proposes restricting federal court jurisdiction to plaintiffs who have a “litigable interest” – a legitimate claim of a legal right presented in a form authorized by law.  If such a claim is set forth in any Article III “Controversy” or in a “Case” with adverse parties, courts may demand proof of a “litigable interest” plus a concrete dispute (as justiciability doctrines demand).   By contrast, in “Cases” of noncontentious jurisdiction, the latter requirement makes no sense, but three other constitutional limitations do.  First, an Article III “Case” must concern a “litigable interest” based on federal, not state, law.  Second, courts must render a judgment that is final.  Third, due process requires notice and a hearing for any third parties whose legal interests might be compromised. 

Professor Pfander’s recommended approach is pragmatic, yet faithful to Article III’s text and history.  He has refined my sharp “case”/”controversy” dichotomy by subtly subdividing “Cases” into two distinct categories:  (1) common law complaints alleging a violation of federal rights by an antagonistic defendant, and (2)  traditional single-petitioner claims of legal rights authorized by Congress.   Pfander has persuaded me that, in the first category, the justiciability doctrines retain utility.  Conversely, he does not reject my idea that federal courts’ chief function in “Cases” is expounding the law, but rather contends that the Framers selected this word principally to convey the “litigable interest” meaning.

In short, Professor Pfander and I have independently reached similar conclusions about the historical meaning of Article III.   Since we have diametrically opposed political views, our work suggests that originalism can be nonpartisan.  The same cannot be said about “originalists” led by Justice Scalia, who repeatedly defended his strict application of justiciability rules by declaring that Article III jurisdiction has always required an adversarial dispute – and by ignoring or dismissing all contrary historical evidence.   The result has often been to kick out of federal court plaintiffs who attempted to vindicate federal rights granted in laws regarded as liberal, such as those protecting consumers, civil rights, and the environment. 

Overall, Jim Pfander’s book is legal history at its finest.  He has done thorough research, drawn reasonable conclusions from the primary sources, fairly acknowledged possible competing interpretations, and explained complex legal and historical ideas clearly.  No one has a better understanding of the historical meaning of Article III.


Robert Pushaw is the James Wilson Endowed Professor at Pepperdine Caruso School of Law.  You can reach him by e-mail at


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