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Article III Judicial power, the adverse-party requirement, and non-contentious jurisdiction.


Existing scholarship on the adverse-party requirement has yet to confront the widespread appearance of ex parte and non-contentious proceedings on the dockets of the federal courts. Nor has it come to grips with the consistent line of Supreme Court decisions upholding such assignments. Of those few commentators who have encountered an instance of non-contentious practice and have identified a potential justiciability problem with the practice, some simply have denied the legitimacy of the exception, viewing it as a violation of the adverse-party or case-or-controversy requirements; (213) others have dismissed the practice as an isolated departure or one that lies beyond the scope of their specific project. (214) We consider arguments against the legitimacy of non-contentious proceedings in later sections of this Article. In this Part, we critically evaluate prior attempts to fit these proceedings within the judicial power as it currently is understood.

A. Isolated Departures and Historical Aberrations

Scholarly treatment of ex parte proceedings often tends to occur in the context of an encounter with a single non-contentious practice--for example, bankruptcy or naturalization proceedings. (215) Perhaps as a result, a common response has been to treat the encounter as an isolated and insignificant departure from the courts' otherwise broad-based commitment to adverse-party proceedings. (216) Apart from the fact that such an approach is unsatisfying from a doctrinal perspective, the rather lengthy catalog of ex parte matters in Part I makes the argument from isolated aberration difficult to sustain. These matters are neither isolated nor considered aberrations in the unbroken line of cases upholding them. The denial practiced by scholars does little to explain the existence of non-contentious proceedings.

Another common response to encounters with non-contentious proceedings has been to treat the specific practice as a vestige of an earlier day--a vestige obviously inconsistent with the adverse-party rule but perhaps too well established to overthrow. (217) One could argue, for instance, that the federal courts' role in naturalization proceedings dates from early in the nation's history and depends for its constitutionality on its pedigree rather than on its compliance with the demands of Article III. (218) The instinct that underlies this strategy may be sound: an early practice, consistently followed, can claim respect as liquidating or fixing the meaning of Article III. For example, the Court cited historical pedigree in upholding qui tarn relator actions, despite the fact that a relator prosecuting the claim on the government's behalf was said to lack standing in his own right. (219)

With respect to non-contentious proceedings, however, the practices "grandfathered" occupy such a broad swath of judicial business that they raise a fundamental question about the soundness of the adverse-party requirement. If the Constitution really does embody such a requirement, then why were the Framers and others in the early Republic apparently so untroubled by the widespread exercise of jurisdiction in non-contentious matters in their federal courts, and why did the First Congress assign, apparently without concern, such matters to the courts' dockets? Also, how can grandfathering explain the consistent appearance of non-contentious business on federal court dockets in new manifestations today, such as the relatively recent creation of the FISA court and the provision for trademark seizure proceedings? Resolving these questions requires more than indulgence; it requires a coherent, possibly separate, classification for non-contentious proceedings and perhaps a fundamental rethinking of prevailing views of federal judicial power.

B. Tutun v. United States and the Possible Adversary Theory

Some scholars attempt to explain non-contentious proceedings by drawing on what has come to be known as the "possible adversary" theory supposedly outlined in Tutun v. United States. (220) Under the possible adversary theory, the prospect of eventual adverse-party litigation in the future can justify the exercise of jurisdiction without an adverse party in the present. (221) In Tutun, two circuit courts certified to the Supreme Court the question of whether they could exercise jurisdiction over appeals of district court denials of naturalization petitions. (222) Justice Brandeis, writing for the Court, held that naturalization proceedings are proper exercises of the judicial power despite the lack of concrete adverseness until (and unless) naturalization is denied and the question goes up on appeal. In a stray statement from the decision, Justice Brandeis hypothesized that one ground for upholding such proceedings was that the federal government remained a potentially adverse party that might intervene to contest the petition if it so chose. (223)

One finds the idea of a possible adversary expressed in a variety of contexts, as scholars have deployed this theory to address a surprisingly wide range of justiciability problems. (224) Some scholars have invoked the possible adversary theory to explain the many uncontested matters that find their way onto the dockets of the bankruptcy courts. (225) Others have invoked it to explain the willingness of federal courts to entertain ex parte warrant applications, arguing that the warrant issues in the shadow of a criminal investigation that may lead to criminal charges in which the target of the warrant can presumably test its legality. (226) Running with this notion, some scholars have explored the relevance of the possible adversary theory to ex parte FISA warrant practice. (227) (FISA warrants rarely lead to criminal proceedings, however, making "razor thin" the fiction that their issuance may result in an adversary proceeding.) (228) Others suggest that Congress should address the absence of any possible adversary by authorizing an after-the-fact suit for damages in which targets of certain FISA warrants could contest their legality. (229) Indeed, a similar justification for the exercise of jurisdiction could be offered in prize cases heard in admiralty; the seized ship's owner, captain, or crew could potentially (and sometimes did) appear to contest condemnation of the prize. (230) One might also use the possible adversary theory to explain federal court jurisdiction over remission petitions, trademark seizure orders, and the issuance of administrative subpoenas, among others. (231)

The possible adversary theory has some appeal in that it offers a means of reconciling the adverse-party requirement with the reality of non-contentious practice, but it cannot bear the weight that scholars have placed upon it. To begin with, whatever the theory's appeal in the isolated context of certain ex parte proceedings, it is difficult to square with other elements of justiciability doctrine. Under bedrock justiciability principles, only ripe disputes between concretely interested parties can invoke the machinery of the federal judiciary. Indeed, in one of the Court's more recent standing decisions, Clapper v. Amnesty International USA, the Court reiterated that "threatened injury must be certainly impending to constitute injury in fact" and that "[a] negations of possible future injury" will not suffice. (232) Ripeness decisions point in the same direction, rejecting the idea that the possibility of a future disagreement can provide a sufficient basis for the invocation of the judicial power. (233) If these proclamations hold, then hypothetical future adverseness cannot solve an actual justiciability problem in a pending case any more than the prospect of hypothetical future injury can confer standing and ripeness in a case where they are lacking. (234) This is particularly true where the possibility of future appearance by an adverse party is, as in FISA proceedings, little more than speculative. (235)

Moreover, the prospect of a future adverse party does little to assuage the concerns that underlie the adverse-party requirement. Hypothetical adverseness does not improve the quality of the record presented to the court, and it does not allow for a balanced presentation of factual or legal propositions; nor does it prevent a court from deciding issues that could compromise the rights of third parties or from interfering with the prerogatives of the political branches of the government. (236) And where an adverse party does not appear (a frequent outcome, as we have seen,237) these problems will persist. It thus is difficult to perceive how the hypothecation of a possible future adversary can offer a plausible justification for non-contentious federal court proceedings.

Apart from questioning the coherence of the possible adversary theory, we have serious doubts that Tutun actually endorsed such a theory. In hearing Tutun, the Court resolved a division in the lower courts as to whether a district court order adjudicating a petition of naturalization was subject to appellate review. (238) The relevant statute empowered the federal appellate courts to hear

appeals from final decisions in "all cases." (239) Rather than limit its analysis to the narrow question of the proper interpretation of that phrase, Justice Brandeis's opinion tackled the more fundamental issue of Article III authority. (240) In doing so, Justice Brandeis adverted to the fact that the congressional practice of assigning naturalization proceedings to the federal courts had begun in the 1790s and had never been questioned. (241) What's more, Justice Brandeis noted, "[i]f the proceeding were not a case or controversy within the meaning of Art[icle] III, [section] 2, this delegation of power upon the courts would have been invalid." (242) The accompanying citation of authority suggests that Justice Brandeis saw no problem with the practice in question under the finality requirement of Hayburn's Case or under the non-advisory rule stated in The Correspondence of the Justices (243) and applied in Muskrat v. United States. (244) Indeed, he recited two possible obstacles to finality--the prospect of a second petition following the denial of the first and the prospect of a suit by the government to cancel a certificate of citizenship--but concluded that an order granting or denying a petition for naturalization is "clearly a final decision." (245)

Next, Justice Brandeis considered arguments that the practice of naturalization was essentially an administrative action and thus unfit for judicial cognizance. In evaluating the nature of the proceeding, Justice Brandeis explained that citizenship under the naturalization law was no mere privilege:
   The applicant for citizenship, like other suitors who institute
   proceedings in a court of justice to secure the determination of an
   asserted right, must allege in his petition the fulfillment of all
   conditions upon the existence of which the alleged right is made
   dependent; and he must establish these allegations by competent
   evidence to the satisfaction of the court. In passing upon the
   application the court exercises judicial judgment. It does not
   confer or withhold a favor. (246)

For Justice Brandeis, then, the key to the case-like quality of the proceeding lay in the asserted claim of right and the exercise of judicial judgment in determining if the requisite showing had been made-a formulation that, we later will see, has important implications for understanding other instances of non-contentious practice. (247) Instead of discussing the need for adversary presentation of issues, Justice Brandeis emphasized the obligations of the court: to conduct open proceedings, to examine the petitioner and witnesses under oath, and to enter a judgment. Plainly, then, he expected the court to perform the searching inquiry that we associate with inquisitorial proceedings. (248)

Justice Brandeis reasoned that Congress has broad discretion in structuring the assertion of administrative claims against the United States. According to the Justice, the United States may "create rights in individuals against itself and provide only an administrative remedy." (249) Or it may provide a legal (that is, judicial) remedy, but require that individuals first exhaust administrative remedies. (250) Or it may create both administrative and legal remedies and give the individual a choice of which to pursue. (251) Or it may "provide only a remedy" in federal court. (252) Justice Brandeis held that when Congress chooses the last of these paths by creating a regular mode of procedure, and when the individual invokes the established procedure in pursuit of a claim of right, "there arises a case within the meaning of the Constitution." (253) A petition for naturalization, Justice Brandeis concluded, "is clearly a proceeding of that character." (254)

It seems odd that the animating feature of Justice Brandeis's opinion--that when Congress so provides, ex parte administrative claims qualify as cases within the meaning of Article III-has largely disappeared from view. That disappearance is all the more startling when one considers that Justice Brandeis was among the leading architects of the Court's justiciability doctrines and had insisted in other contexts on the importance of adverse parties. (255) One might suppose that Justice Brandeis's reputation as an adverse-party hawk would lend greater authority to his acceptance in Tutun of ex parte proceedings. But this has not been the case. Instead, scholars have tended to pigeonhole Tutun as a decision that stands for a proposition less sweeping and potentially unsettling than the one Brandeis articulated. As we have noted, some point to the fact that Justice Brandeis also invoked the lessons of history, adverting to the longstanding practice of naturalizing citizens as one that had never been questioned. (256) And many, as we have seen, treat Tutun as a potential adversary case.

But that reading is not persuasive. Although the potential adversary language had appeared earlier in Muskrat, Justice Brandeis did not suggest that Muskrat controlled, and he did not suggest that his characterization of naturalization proceedings as "cases" turned on the possibility that an opponent might appear. Nor did he explain how much potential adverseness was enough or indicate that the actual appearance of the United States was necessary to bring the matter within the judicial power. (257) Justice Brandeis also did not contend that the congressional creation of a potential role for the United States was essential to make Tutun's claim a case; after all, the history of naturalization to which Justice Brandeis referred did not feature an adversary, potential or otherwise. To be sure, beginning in 1906, applications for citizenship were to undergo relatively searching review. (258) In addition to the use of hearings at which the court took testimony from the applicant and witnesses, (259) the government could contest naturalization, both before and after the issuance of the certificate. (260) 261 But before 1906, the various congressional enactments defining the role of courts in naturalization never provided for intervention by the United States or any other party to contest the petitioner's application. (261) The most reasonable conclusion, therefore, is the one recognized by Henry Monaghan: that the reference to the government as a possible adverse party was not central to the Court's holding that ex parte naturalization proceedings are cases within Article III. (262)

Even if one were to ascribe a possible adversary holding to Tutun, that construct has done no work in subsequent cases. Although the Court has issued a series of decisions upholding ex parte proceedings, it has never cited the "possible adverse party" theory of Tutun in doing so. Rather, the Court has emphasized that the proceeding under consideration calls for the exercise of judicial judgment in resolving an issue of law or fact. That was the message in Ullmann, upholding the judicial power to confirm the propriety of an uncontested grant of immunity. (263) It was also the message in Hohn, which treated ex parte petitions for certificates of appealability as "judicial in nature," (264) notwithstanding the dissent's complaint that these proceedings lacked the qualities of adverseness associated with cases. (265) Although the Court acknowledged that adversary disputes over COAs were commonplace, it did not invoke the possibility of such a dispute as support for its holding. (266)

For all of these reasons, it does not make sense to try to explain away ex parte proceedings through the possible adversary theory. Case law provides little support for such a construct, and the use of hypothetical adversary parties does not fit well with the Court's general approach to justiciability problems. In any case, such an approach would invite line-drawing problems as the courts considered how much potential adverseness was required in any particular case. FISA warrant proceedings, in particular, would seem vulnerable to a rule that required more than the slightest possibility that future party opponents would emerge (or learn that they were the subject of a FISA warrant). Better, we think, to address the problem forthrightly and to develop a coherent framework for the presence of ex parte and other proceedings lacking an adverse party. We offer such a framework below.


Having described widespread ex parte practices in Part I, and having shown in Part II that existing adverse-party scholarship does not adequately explain their appearance on federal dockets, we offer a solution. We believe that the explanation for non-contentious federal proceedings lies outside the adversary model, in the many non-contentious forms of action that Britain, colonial America, and the United States borrowed from the Roman and civil law. Below, we demonstrate that the failure of the early federal courts to curb non-contentious proceedings resulted not from oversight or inadvertence but from an understanding shared by the Framers and the lawyers of the Founding generation that the "judicial power" conferred by Article III consists of two distinct dimensions: contentious jurisdiction and non-contentious jurisdiction. Moreover, although non-contentious jurisdiction is not generally a part of the vocabulary of a modern American judiciary less well-acquainted with the civil law, we show that this form of jurisdiction can explain the willingness of federal courts to uphold, in appropriate situations, the exercise of judicial power over ex parte proceedings in the face of challenges based on modern justiciability doctrines.

Such a dual-power solution has the virtue of preserving much of the Court's adverse-party learning for application to contentious disputes over matters of federal law, state law, and federal constitutional law in particular. At the same time, the construct of non-contentious jurisdiction can help rationalize, clarify, and evaluate the manner in which federal courts manage the administration of claims and other ex parte matters. In this Part, we describe the historical background of non-contentious jurisdiction, from its origins in Roman law, to its reception in Europe, to its manifestations in legal proceedings and materials at the time of the Framing. Our findings lead us to reevaluate the adverse-party requirement and to offer a novel account of the case-controversy distinction employed by Article III.

A. The Historical Pedigree of Non-Contentious Jurisdiction

1. Roman Law

Although it did not leave much of an impression on the common law of England, non-contentious jurisdiction has a rich grounding in history. Its origins lie in the law of ancient Rome, which appears to have divided judicial actions into two forms: iurisdictio contentiosa and iurisdictio voluntaria, or contentious and "voluntary" jurisdiction. (267) Contentious jurisdiction was "[j]urisdiction in cases involving a legal controversy between the parties to [a] trial" designed to resolve a conflict of legal or personal interests. (268) Voluntary jurisdiction, by contrast, was "the intervention of a magistrate in matters in which there [was] no quarrel between the parties and the fictitious trial serve[d] only as away of performing certain legal acts or transactions." (269)

Voluntary proceedings included in iure cessio (the conveyance of property in the form of a feigned case, which resulted in a consent judgment sanctioning the conveyance), emancipatio (the emancipation of minors), adoptio (adoption), and manumissio (the manumission of slaves), as well as the "cooperation of officials in guardianship matters and legal acts for the validity of which a permission of the competent authority is required." (270) The court's function in such matters was limited to sanctioning, ratifying, legitimizing, or collaborating in the creation of a legal act or relationship that was accepted by the parties in advance and that did not prejudice the rights of third parties not before the court. As such, whenever it appeared that an agreement or alignment of the parties' interests was not present or had disappeared, the proceedings would alter and become contentious in character. (271)

As this brief summary reveals, matters within iurisdictio voluntaria arose not from a concrete dispute of law or fact among the parties, but from the desire of those parties to secure a conclusive legal recognition of their status or to obtain formal approval of "certain legal acts or transactions." (272) Indeed, many of the invocations of voluntary jurisdiction described above were similar to petitions for naturalization in federal courts in that the law provided a procedure by which parties could alter their legal status through ex parte applications for judicial action. (273) For example, emancipatio, or "[t]he voluntary release of a son or daughter from paternal power by the father," could, under the law of Justinian, be "performed by a simple declaration before a competent official." (274)

Other invocations of non-contentious jurisdiction took the form of feigned controversies. Notably, injure cessio ("a surrender in court") would secure a change in property ownership as follows:
   [In jure cessio] was a collusive or fictitious suit whereby the
   person to whom the property right was to be conveyed claimed in
   open court to be the owner. Thereupon, the magistrate asked the
   other party, the present owner, whether he also claimed it. Upon
   the denial or silence of such other party, the magistrate gave
   judgment (addicit) in favor of the claimant. (275)

Parties relied upon proceedings in jure cessio "for a number of legal transactions," such as the transfer of property, the formalization of adoption and emancipation, and "the creation of servitudes." (276)

According to Fernandez de Bujan, voluntary jurisdiction in Roman law occupied an "autonomous" zone on the border between the judicial and administrative powers and, as a result, has posed challenges for historians attempting to classify or describe its precise nature. (277) Nevertheless, and despite the fact that it is in some respects difficult to square with our own conceptions of judicial activity, voluntary jurisdiction did comport with the Roman conception of jurisdiction as the execution of "a public function upon private juridical interests and relationships." (278) The judge or magistrate was not a "mere automaton," but instead tested the factual basis for the petition, required testimony on the record before granting judicial sanction to the petition, and exercised "control over the legality of the acts of the appearing party or parties." (279)

2. The European Reception of Non-Contentious Jurisdiction

Non-contentious jurisdiction further developed as Roman law was received into the civil law of continental Europe and Scotland. (280) Thomas Wood's influential eighteenth-century treatise A New Institute of the Imperial or Civil Law, for example, divides "causes" into "Jurisdictio Contentiosa, or Judicial, which is exercised upon Persons whether they consent to it or not," and "Voluntaria, which may be used at all times without any manner of contradiction; as Emancipation, Adoption, Manumission; and in several other legal Acts granted by the Judge upon request, and by consent of all Parties." (281) Voluntary jurisdiction also appeared in Scotland, and the distinction between contentious and non-contentious jurisdiction was described in the late eighteenth century by Sir John Erskine, author of a treatise that was well-known in Britain and in America. (282) Drafters of the German civil code in the sixteenth century similarly incorporated elements of non-contentious jurisdiction, (283) although German law did not perfectly map onto ancient forms. (284)

Non-contentious jurisdiction remains a feature of many continental judicial systems today. In France, the civil code defines voluntary jurisdiction, or juridiction gracieuse, to encompass both ex parte proceedings and feigned controversies. French law empowers the proper court to assert non-contentious jurisdiction "over all claims not involving an adversary and not contestable by a third party; and ... over all claims in which the parties, not being in disagreement, are required by their status or the nature of the affair, to obtain a court decision." (285) Other countries have taken a less formal approach. Italian courts exercise the functional equivalent of non-contentious jurisdiction (giurisdizione volontaria) in the absence of any formal codification in the rule books. (286)

Non-contentious procedures vary somewhat from nation to nation. In Italy, non-contentious matters have been handled by a judge "in chambers," rather than during the formal sitting of the court. (287) In Germany, by contrast, much non-contentious jurisdiction has been assigned to the local or district courts. (288) Non-contentious proceedings have a judicial quality; one treatise on German law explained that although a certain exercise of jurisdiction was non-contentious, it was "in no way 'non-judicial.'" (289) But the character of the proceeding reflects its non-contentious roots. Non-contentious jurisdiction requires the judge to play an active role in developing the factual record; the court cannot rely on an adverse party to help frame the issues. One German scholar characterized the judge in non-contentious matters as enjoying "a great deal of freedom" to "take any evidence." (290) An Italian scholar echoed that conclusion: non-contentious proceedings "are marked by the extensive inquisitorial powers bestowed upon the judge in charge of the case." (291) These powers ensure that the judge has "ample discretion as regards the evidence-taking phase of the procedure." (292)

A broad range of matters has been assigned to non-contentious jurisdiction in Europe. Many countries, for example, provide for judicial oversight of probate matters in an effort to ensure proper resolution of potentially fraught issues of inheritance and succession. (293) (As we will see, common-form probate proceedings in Anglo-American law derive from this form of non-contentious jurisdiction in European civil law countries. (294)) In addition, European civil-law countries often rely on non-contentious jurisdiction to oversee the appointment and supervision of guardians, (295) and the formal registry of interests in real property. (296) Finally, European countries have provided for the formal registration of contracts of suretyship and the acknowledgement of debts through non-contentious proceedings (297) and have assigned certain matters of insolvency and bankruptcy to such a mode. (298)

Although defining the construct of non-contentious jurisdiction in its modern guise presents conceptual challenges, (299) scholars agree that courts exercising non-contentious jurisdiction perform somewhat the same role as administrative officers or agencies. Thus, one scholar contrasted contentious matters with non-contentious matters, which he characterized as "prudential administration of justice, for the security of private legal interests." (300) Another scholar defined non-contentious jurisdiction as "a form of judicial intervention that borders on the field of tasks falling, as a rule, within the realm of executive power, that is, tasks that could (at least in principle) be performed by administrative bodies as well." (301) Mauro Cappelletti and his co-authors report that the traditional definition is that voluntary jurisdiction involves the "public administration of private law by judicial organs." (302) Often, non-contentious proceedings seek a form of official recognition viewed as "necessary to create individual rights," (303) comparable in some respects to petitions for the recognition of patents, copyrights, and titles to public land.

The frequently ex parte character of non-contentious proceedings has led to predictable concern with the protection of the rights of third parties. European countries have dealt with third-party rights in a variety of ways. Most commonly, as in Italy, the courts simply deny preclusive effect to the decrees of tribunals exercising non-contentious jurisdiction, thereby limiting their potentially prejudicial effect. (304) In Germany, the Federal Constitutional Court has found that individuals have a due process right to be informed about and to participate in any non-contentious proceedings that might affect their interests. The German Federal Constitutional Court also has held that parties to a non-contentious proceeding may seek the recusal of an interested or biased judge. (305)

3. Non-Contentious Jurisdiction in England and America

The situation in England and America was more complicated, if only because of the somewhat rockier reception the civil law encountered in those countries. The common-law courts of England resisted, and largely prevented, Roman and civil law from usurping the central place of the common law as the foundation of the English legal system, (306) and the common law (eventually at least) was adopted as the primary source of law in much of the United States. (307) Nevertheless, many English and American courts adopted civil-law practices, and many exercised non-contentious jurisdiction. (308)

Many of these non-contentious practices took place in courts bearing the stamp of continental and civil influence--such as courts of equity and the ecclesiastical and admiralty courts--but the practices actually predated the Norman Conquest and grew organically out of the common business of local courts well before the time of Blackstone. (309) For example, the courts of Anglo-Saxon England and the county courts of medieval England conducted the voluntary transfer of land and the sanctioning of documents through judicial process. (310) By witnessing these and other formal acts, such as marriages, the courts provided legal recognition and public legitimacy. (311) Later, British ecclesiastical courts consciously exercised non-contentious jurisdiction in a wide variety of proceedings, including the probate of wills and the issuance of marriage licenses, (312) and, as we already have noted, one of the chief functions of admiralty courts was the condemnation of prizes in what frequently were ex parte proceedings. Similarly, according to William Burdick, the non-contentious Roman procedure injure cessio was "undoubtedly the inspiration of the collusive or fictitious suits in early English law known as fine and common recovery," a cognizable action in English common-law courts. (313)

The Court of Chancery also possessed a non-contentious jurisdiction, which it exercised in such matters as the appointment of guardians for infants, and, as noted previously, in the creation of equitable receiverships. (314) Much as an application for a receivership assumed the form of an often-fictional dispute, (315) courts of equity predicated the appointment of a guardian for a minor upon a fictional suit over property held in the district. (316) Justice Joseph Story reported on this development with some puzzlement, wondering why the fiction of a dispute was necessary to trigger a court's equitable powers of appointment. (317) It should come as no surprise, then, that many of these same non-contentious proceedings made their way to the American colonies and were employed in the equity, admiralty, and probate courts of the early United States.

Indeed, although many of their judges had little or no legal training or education, (318) local colonial courts often exercised jurisdiction over both contentious and non-contentious matters, and some even performed purely executive or legislative functions, such as maintaining county buildings, conducting inquests, raising taxes, and planning highways. (319) Many colonial courts were as signed quintessentially non-contentious tasks, such as recording land transfers and other instruments, conducting examinations for the admission of attorneys to the bar, and evaluating petitions for liquor licenses. (320) Colonies and territories established orphans' courts for the protection of the estates and welfare of orphans and invested courts with probate powers to administer estates. (321) Still others were granted wide-ranging and non-specialized jurisdiction over common law as well as probate, admiralty, and equity cases, thereby assuming the role played by both the Court of Chancery and the ecclesiastical courts in England. (322)

Nevertheless, we do not make specific claims about the process by which the tradition of non-contentious jurisdiction made its way to the new world. In some respects, governmental systems lacking a sophisticated administrative apparatus, such as Anglo-Saxon England and the early colonial American settlements, would understandably use courts to exercise jurisdiction over noncontentious business regardless of whether that business was seen as grounded in the Roman tradition of voluntary jurisdiction. (323) The sixteenth-century development of the administration of prize cases, for example, seems to have grown organically out of the need of the state to provide conclusive legal title to the captures taken by privateers acting under the state's authority rather than out of regular disputes over such matters or as a direct outgrowth of Roman law. (324)

We believe that by incorporating non-contentious jurisdiction, Article III simply responds to the actual needs of the federal system to administer its law. For example, the decision of Congress to bring the judicial power to bear on naturalization petitions by assigning them to "courts of record" made functional sense. Open proceedings would ensure a searching judicial inquiry into the status of the applicant and could help to prevent the naturalization of those with suspiciously limited ties to the community. (325) Such an assignment could also ensure the creation of a permanent and conclusive record of the alien's admission to citizenship. A permanent record was of central importance in a world in which only citizens enjoyed the right to own land. (326) In addition, the conclusive quality of judgments "of record" protected citizenship decisions from attack in subsequent disputes over title to property. (327)

This practical response to perceived needs provides the best account of how these non-contentious proceedings arrived on federal dockets and how they fit with the practice of federal courts today. Nonetheless, we do see an obvious link between European developments and the non-contentious practices catalogued in Part I of this Article. The Framers and others of the Founding generation were well versed in Roman political history, (328) and many were close students of Roman and civil law (329) and of the practices of the English admiralty, equity, and ecclesiastical courts. (330) Civil law was in fact central to the education of the more sophisticated American lawyers, including such luminaries as Chief Justice John Marshall, Thomas Jefferson, and John Adams. (331) In 1786, James Madison examined the practices of the Dutch admiralty courts as part of his pre-constitutional study of confederacies, (332) and Alexander Hamilton and James Wilson, among others, were well familiar with principles of admiralty jurisdiction and practice. (333) The courts of the colonies and the early Republic often, implicitly or explicitly, looked to the courts of England in developing processes and procedures, including the procedures employed in local courts, courts of equity, and probate and prize proceedings. Application of the civil law in appropriate cases was assumed at the Constitutional Convention, (334) and the Process Act of 1789 prescribed that the forms and modes of proceedings of civil law would govern in cases of admiralty and equity jurisdiction. (335) Later, as Thomas Lee has noted, Edmund Randolph reported to Congress that "a federal judge in the early Republic had to be not only 'a master of the common law in all its divisions' but also a 'civilian.'" (336) The judicial power with which federal courts were invested surely encompassed both the common-law and civil-law traditions.

Regardless of whether the Framers specifically contemplated a link between the judicial power they conferred on federal courts and the voluntary jurisdiction of Roman and civil law, we have little doubt that non-contentious jurisdiction was a regular feature of the judicial proceedings in equity, admiralty, and probate with which the Framers were familiar from everyday experience. In this cosmopolitan legal world, the decision of Congress to assign non-adverse proceedings to federal courts does not present much of a mystery. Indeed, the uncontroversial decision to include equity and admiralty "cases" in the federal constitutional catalog provides solid evidence that non-contentious jurisdiction was considered an acceptable dimension of the business of Article III courts.

B. The Adverse-Party Requirement Reconsidered

What, then, of the adverse-party requirement? After all, if the judicial power conferred by Article III includes a role for non-contentious jurisdiction (as history and practice tend to suggest), then the adverse-party requirement must be modified--or at least be rendered more malleable--to account for the exercise of that power. But if an inflexible adverse-party requirement is part of the irreducible core of Article III or of the Court's justiciability doctrines, then one might argue that non-contentious jurisdiction simply cannot be considered part of the judicial power, and that the many departures from adverse-party proceedings in the federal reports are (at least from an originalist perspective) fundamentally impermissible. Below, we explain that the supposed roots of an inflexible adverse-party requirement stand on textually and historically infirm ground. Although adverseness has work to do in defining and circumscribing the judicial power in contentious proceedings, the imposition of an inflexible, across-the-board requirement does not fit with the text of Article III or the practice of federal courts in administering federal law. Indeed, we think non-contentious jurisdiction may help to explain some other enduring mysteries of federal jurisdiction, including why the Framers chose to use two terms, "cases" and "controversies," to describe the work of the federal judiciary.

1. Cases, Controversies, and the Judicial Power

The well-known words of Article III extend the "judicial power" to "Cases" arising under the Constitution, laws, and treaties of the United States, and to "Controversies" between certain configurations of parties. (337) Although the terms are not actually linked in the text, since the twentieth century the Supreme Court has frequently conjoined them in its discussions of justiciability, referring to a "case-or-controversy" requirement in a manner suggesting that the two terms are wholly synonymous. (338) The case-or-controversy requirement has been invoked repeatedly by courts and scholars seeking a textual foundation for the adverse-party requirement, as Justice Scalia did in Windsor and Hohn. (339) The most careful and comprehensive attempt to ground the adverse-party requirement in the text, structure, and history of Article III--that of Redish and Kastanek in their investigation of settlement class actions--places particular emphasis on the term "controversy," arguing that the adverseness inherent in that term should be imputed to the definition of "case" as well. (340) On this view, both terms imply the existence of opposing parties with adverse interests presenting their dispute for adjudication in a standard legal action.

From the perspective of modern lawyers steeped in the assumptions of the American adversary system and long accustomed to the Supreme Court's conflation of "case" with "controversy," the conclusion that a justiciable case requires the participation of an adverse party makes a fair amount of sense. Indeed, Redish and Kastanek have argued that the Court's conjunction of the terms casts a "heavy burden" on those who propose to read the term "cases" as broader in scope than the term "controversies." (341) But the modern view must confront burdens of its own. To begin with, judicial opinions conflating cases with controversies are of relatively recent vintage, (342) and it is by no means clear that such a reading was shared by the Framers or by the early Supreme Court. (343) In fact, important early definitions of the term "cases" within the meaning of Article III provided by Chief Justice John Marshall and Justice Joseph Story do not refer to adverseness and do not assume the appearance of more than one party to the proceeding. Chief Justice Marshall and Justice Story were both familiar with the range of ex parte matters that had been assigned to the federal courts. Both Justices, moreover, upheld the exercise of judicial power in such matters. (344)

Against this background, it is striking that Chief Justice Marshall and Justice Story couched their canonical definitions of the term "case" in terms broad enough to encompass ex parte matters. Listen first to the familiar words of Chief Justice Marshall's opinion in Osborn v. Bank of the United States:
   This clause [extending jurisdiction to federal question "cases"]
   enables the judicial department to receive jurisdiction to the full
   extent of the constitution, laws, and treaties of the United
   States, when any question respecting them shall assume such a form
   that the judicial power is capable of acting on it. That power is
   capable of acting only when the subject is submitted to it by a
   party who asserts his rights in the form prescribed by law. It then
   becomes a case, and the constitution declares, that the judicial
   power shall extend to all cases arising under the constitution,
   laws, and treaties of the United States. (345)

Justice Story's Commentaries on the Constitution adopts the same formulation: "A case, then, in the sense of this clause of the constitution, arises when some subject touching the constitution, laws, or treaties of the United States is submitted to the courts by a party who asserts his rights in the form prescribed by law." (346)

The Marshall-Story account provides a straightforward basis for the exercise of jurisdiction over both contentious and non-contentious cases. Consider the typical contentious federal question claim, one in which a party demands a remedy from an opposing party for the claimed violation of a legal right. (347) Such a claim for redress of violations would clearly qualify as an assertion of one's rights within the Marshall-Story paradigm. (348) Yet the Marshall-Story definitions would also encompass non-contentious federal question claims. The definitions require only the assertion of claims by a single "party" and say nothing about the joinder of an opposing party. In addition, the formulations require only the assertion of one's "rights," and thus encompass claims in the nature of ex parte applications for pension benefits, naturalized citizenship, and other legal entitlements, such as warrants, conferred by law. As both Chief Justice Marshall and Justice Story would have understood, one can certainly assert claims of right on an ex parte basis without seeking redress from an opposing party. (349)

The formulations provided by Chief Justice Marshall and Justice Story to some extent tracked civil-law definitions of the "causes" cognizable before a judicial tribunal. The term "case" in Article III bears an obvious linguistic similarity to the Latin term causa, or cause, and both terms cover much the same ground. Indeed, the Oxford Latin Dictionary defines "causa" to mean "judicial proceedings," or a "legal case." (350) The definition of "cause" in an eighteenth-century English treatise anticipates Justices Marshall and Story:
   A Cause (called in the Latine Causa) is defined (by Logicians)
   That, by whose Vertue or Efficacy, any thing is made to have a
   Being or Existence [i.e., causation] ... The word Cause is
   Metaphorically used here [i.e., in a legal treatise], for the word
   Action: which (amongst those many Significations the Glossaries
   seem to put upon it) we shall only define to be the right of
   prosecuting or pursuing (in a Court of Judicature) whatsoever any
   one supposes, is properly his Due, &c. (351)

Like the Marshall-Story formulation, this definition of "cause" encompasses ex parte proceedings in which an individual "pursu[es]" in a court of judicature that which he supposes to be "properly his Due" and does not require the joinder of an adverse party.

Indeed, if one canvasses antebellum judicial decisions, one sees nothing like the modern use of the conjoined terms "cases or controversies" to suggest adverse-party restrictions on the work federal courts can perform. Our research suggests that the conjunction of terms did not appear until an 1887 circuit court opinion of Justice Stephen Field that refused to enforce a subpoena at the behest of the federal Pacific Railway Commission. (352) Justice Field's account of the term "cases" follows:
   The judicial article of the [Constitution mentions cases and
   controversies. The term 'controversies,' if distinguishable at all
   from 'cases,' is so in that it is less comprehensive than the
   latter, and includes only suits of a civil nature. By cases and
   controversies are intended the claims of litigants brought before
   the courts for determination by such regular proceedings as are
   established by law or custom for the protection or enforcement of
   rights, or the prevention, redress, or punishment of wrongs.
   Whenever the claim of a party under the constitution, laws, or
   treaties of the United States takes such form that the judicial
   power is capable of acting upon it, then it has become a case. The
   term implies the existence of present or possible adverse parties
   whose contentions are submitted to the court for adjudication.

Note the move here. Justice Field first suggests the broad similarity of the terms "cases" and "controversies." Then, after restating and expanding the Marshall-Story definition, Justice Field makes the then-novel claim that the term "case" implies the features of a controversy; namely, the existence of present or possible adverse parties with competing contentions. In short, Justice Field used the idea of a controversy to transform the non-contentious Marshall-Story definition of a "case" into one that requires the existence of an adverse-party dispute. He perceived no such dispute in the matter before him; a federal commission was conducting an investigation for regulatory purposes and had not brought suit in federal court against the Pacific Railway. (354)

Justice Field may have recognized that he was breaking new ground and consequently may have labored to explain how other non-contentious applications differed from the administrative subpoenas under consideration. (355) Nevertheless, and perhaps because his efforts at distinguishing other noncontentious proceedings did not prove persuasive, his opposition to a federal judicial role in administrative subpoena enforcement did not take hold. The Court later ruled that applications for such subpoenas were proper subjects of judicial cognizance, (356) and the federal courts today oversee the enforcement of administrative subpoenas without raising Article III doubts. (357)

Yet Justice Field's reformulation of the Marshall-Story definition of a "case," from one that contemplates ex parte applications to one that requires adverse parties, has had great influence. Justice Field himself imported Pacific Railway's case-controversy conjunction into Supreme Court jurisprudence in Smith v. Adams in 1889: "By those terms [cases and controversies] are intended the claims or contentions of litigants brought before the courts for adjudication by regular proceedings established for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs." (358) Later, in Muskrat, the Court recited the "present or possible adverse parties" idea from Pacific Railway in the course of rejecting what it perceived as an improper attempt to secure an advisory opinion. (359) And by the middle of the twentieth century, the conflation of cases with controversies was complete. (360)

Perhaps needless to say, we think the Marshall-Story formulation better and more faithfully captures the idea of a "case" as used in Article III, and we propose that scholars and jurists disavow the Justice Field gloss. In any event, it now seems clear that the case-controversy conjunction arrived on the scene after nearly a century of ex parte practice and provides scant support for the view that an adverse-party requirement applies across the board to all matters brought before Article III courts.

Stepping back from this genealogy, we observe that, from a textual perspective, the conjunction of cases and controversies runs afoul of the commonplace presumption that legal drafters use different terms to convey different meanings. (361) That presumption bears particular force here, given that in Article III, the terms "cases" and "controversies" are repeatedly deployed in two different ways. The term "cases" is generally used where a grant of jurisdiction depends on the subject matter of the action, whereas the term "controversies" is used exclusively where the grant of jurisdiction depends on the identity of the parties opposing one another. (362) Indeed, some scholars (including one of us) have treated the terms as potentially conveying different meanings, arguing that "cases" may be the broader of the two and may include both civil and criminal matters, while the narrower "controversies" may include only disputes of a civil character. (363) Pushaw, by contrast, has questioned this civil-criminal distinction and argued that the terms may actually describe two different functions of the federal judiciary. (364) For Pushaw, cases that implicate federal law invite the federal courts to play an expositional role, and controversies simply call upon the federal courts to provide an unbiased forum for the adjudication of disputes. (365) While many scholars now agree that controversies differ from cases, no consensus has yet emerged to explain what the difference is.

Our construct of non-contentious jurisdiction helps to explain the conspicuous difference in usage between the terms "case" and "controversy" in a manner that accounts for the presence of ex parte proceedings on federal dockets. On our view, and in keeping with the Marshall-Story definition of a "case," federal courts have the power to exercise non-contentious jurisdiction in federal question proceedings that have been assigned to them by Congress. We think "cases" include both criminal and civil matters and at the same time contemplate a special function for federal courts. As this Article has noted, noncontentious matters crop up on both the civil and criminal side of the federal docket. Just as federal bankruptcy proceedings require federal judicial administration of the bankruptcy estate, so too do federal criminal matters frequently lead to the issuance of ex parte search or arrest warrants and the entry of convictions on the basis of non-adverse guilty pleas. (366) The term "case," particularly as defined by Chief Justice Marshall and Justice Story, extends broadly enough to encompass all such proceedings. Article III "controversies," by contrast, require a dispute between designated opponents and exclude original petitions for the performance of the administrative functions associated with non-contentious jurisdiction. (367)

We thus take Pushaw's suggested distinction in a new direction, (368) emphasizing less the special law-exposition role of the federal courts and more their power to exercise their judicial functions despite the lack of a controversy when Congress has called for the exercise of federal judicial power. A "case," on this view, might arise under federal law or touch matters of admiralty and maritime jurisdiction, without invariably entailing the joinder of adverse parties. Federal courts might plausibly be given--and, as we have seen, often have been given-- the authority to exercise judicial judgment in the administration of federal law "cases" on an ex parte or non-contentious basis. That was certainly the view of the Court in Tutun, which concluded that naturalization petitions give rise to "cases" within the meaning of Article III, (369) and it is a view that permits theory for the first time to cohere with text and practice.

2. Hayburn's Case and the Lessons of History

How, then, to account for Hayburn's Case? (370) Congress did, after all, assign the circuit courts responsibility for processing the pension claims of disabled veterans on an ex parte basis, and three circuit courts did, indeed, refuse to entertain the claims in question (371) (although the judges of some of the courts agreed to hear the claims, extrajudicially, as "commissioners" (372)). While the Court did not decide the question itself, the circuit courts wrote letters to President George Washington, explaining their refusal to do the business. Set forth in footnotes to the Court's inconclusive proceedings, the letters point to two flaws in the pension scheme. The first was a lack of judicial finality: the circuit court decisions were subject to revision by an executive branch official (the Secretary of War) and then by Congress. (373) The second was a concern with the judicial nature or the "judicial manner" of the proceeding. (374) Although the finality concern seems straightforward, the letters do not say precisely what they mean by the second critique.

Lacking a clear explanation, some scholars have speculated that these doubts as to the judicial nature of the proceeding were meant to express concern with the ex parte nature of the claims. The first edition of Hart and Wechsler's federal courts casebook put the issue, characteristically, in the form of a question: "Was the lack of provision for any party defendant one of the reasons why the judges thought that the statute did not call for the exercise of 'judicial power'?" (375) The current edition, also characteristically, puts the matter more forthrightly. After posing the hypothetical possibility of a statute assigning the determination of federal Social Security disability claims to the federal courts on an ex parte basis, the current edition suggests such a statute would fail: "Hayburn's Case, however, seems to reject rather decisively Congress's effort to enlist federal courts to act as administrative agencies by applying law to fact outside the context of a concrete dispute between adverse parties." (376) The view that Hayburn's Case forecloses ex parte administration of claims has become quite widespread. (377)

Widespread--but, we think, anachronistic. Perhaps the strongest evidence against an adverse-party reading of Hayburn's Case lies in the federal courts' contemporary and subsequent acceptance of ex parte duties of various sorts. Indeed, in Hayburn's Case itself, the Supreme Court did not insist on the appearance of adverse parties. Randolph proceeded by "motion" on behalf of his client, William Hayburn, and that appears to have been thought sufficient to authorize an initial evaluation of the merits. (378) No one demanded service on, or the appearance of, the respondent circuit court. (379) In the wake of Hayburn's Case, moreover, Congress reassigned pension duties to the district judges on an ex parte basis. (380) More significantly, as we showed earlier, Congress repeatedly assigned administrative matters to the federal courts. (381) Such matters surely would have implicated the rule against the judicial acceptance of administrative assignments, had such a rule emerged from Hayburn's Case. That was what Justice Brandeis apparently meant by referring to the case in the course of upholding ex parte naturalization proceedings in Tutun. (382)

In addition, we have reviewed the contemporaneous commentary and do not believe that the circuit judges' refusal to act was based upon the ex parte character of the proceedings. (383) Apart from the concern with finality, which was prominently featured in every account of the case, one finds a smattering of additional concerns, unrelated to the lack of adverseness, that may explain why some of the judges considered Congress's scheme to require the performance of non-judicial duties. In proceedings before the House of Representatives in April 1792, held shortly after the Pennsylvania circuit refused to act, the reporter described the problems as follows :
   [I]t appeared that the Court thought the examination of Invalids a
   very extraordinary duty to be imposed on the Judges: and looked on
   the law ... as an unconstitutional one, inasmuch as it directs the
   Secretary of War to state the mistakes of the Judges to Congress
   for their revision ....Another objection, on the part of the
   Judges, was, that whereas there are laws now in force, prescribing
   a day, beyond which the court shall not sit, this new law declares
   that the court shall not sit five days for the purpose of hearing
   claims, whether they be offered or not; and leaves nothing to the
   discretion and integrity of the Judges, to sit as long as they have
   public business to do. (384)

On this account (which precedes the court's letter to President Washington), the Pennsylvania circuit viewed the absence of finality as the master objection and identified two other criticisms that we might today characterize as matters of judicial dignity. First, the statute called upon the court to conduct a physical examination of the wounds of the invalids, a duty the judges apparently regarded as distasteful. (385) Second, the statute required that the circuit courts "remain at [their] places" for "five days, at the least, from the time of opening the sessions thereof' to allow disabled veterans to file their claims. (386) In the early days, many circuit courts would sit for a day or two at most and then adjourn. (387) Viewing the duty to sit as inconsistent with the "discretion and dignity" of their judicial office, the Pennsylvania circuit judges may have had this affront to their discretion in mind in criticizing the law as imposing duties not of a "judicial" character. (388)

Apart from the report in the House proceedings, the editors of the Documentary History of the Supreme Court have published a previously overlooked set of notes, authored by Justice James Iredell during the August 1792 argument in

Hayburn's Cased. (389) In describing "objections" to the pension statute, Justice Iredell's notes read as follows:


1. Not of a Judicial nature.

2. Not to be exercised in a Judicial manner.

As to the first, it must be found in the Constitution all Laws under the United States See.

Contracts equally valid &c.

Pensioners, all public Services

Congress have done nothing more than to direct [the pensioners'] titles to be re-examined

In effect a Suitor.

Petitions of Right & Monstrans de droit Destitute of forms of Writ

Suit a Demand of any thing.

A more dignified mode of becoming a Defendant

2. Not to be executed in a Judicial way.


To inspect wounds in the case of Mayhems.

Substance only to be regarded where a Sovereignty permits itself to be sued.

Forms may be disregarded where Parties agree. (390)

Even as it poses obvious interpretive challenges, this evocative fragment may provide a window into the nature of the Justices' concerns. The second "objection" tends to confirm that one or more Justices continued to view the obligation to examine the wounds of the petitioners as casting doubt on the "judicial manner" of the proceeding. Justice Iredell's notes suggest that someone attempted to respond by invoking the "example" of "mayhems." At common law, as various digests and abridgments of the day confirm, a judge called upon to hear a case of "mayhem" was obliged to inspect the plaintiff's wounds in the course of adjudicating the claim. (391) The mayhem example seems intended to answer any doubts (apparently unrelated to any concern with a need for adverse parties) that had arisen as to the "judicial" quality of the examination obligation. (392)

Justice Iredell's account of the first objection addresses a different issue. One could argue that the arguments in Justice Iredell's notes denote a lingering concern with the formal joinder of the United States as a defendant and therefore provide some support for an interpretation of the circuit court letters as reflecting a concern with proper parties. But a variety of considerations point away from adopting this adverse-party gloss on Hayburn's Case. First, none of the Justices suggested, either in the letters or in comments collected in Justice Iredell's notes, that the federal courts lacked power over the proceedings in the absence of adverse parties. The concern instead appeared to focus on sovereign dignity and formal consent to suit. (393) Second, of the broad mix of considerations in play, only the concern with finality was consistently articulated and broadly shared. (394) Third, the Justices' views were apparently evolving; while the five-day provision informed the circuit court's initial response in April, it did not appear in Justice Iredell's notes of the argument in August. (395) Fourth, it may be difficult ultimately to separate the concern with the manner of suing the United States from the problem of finality. Congress's desire to retain control over the purse strings certainly informed its approach to pension claims and later led it to assign money claims to legislative courts that were not constrained by Article III's judicial finality requirement. (396)

The lesson of Hayburn's Case is not that the federal courts lack power to hear ex parte proceedings, but that they can act only where their decision will have a binding, legally determinative effect. The prospect of executive revision would have denied that effect to the courts' pension decisions. And the lack of finality explains subsequent cases in which the Court has invoked Hayburn's Case to support the proposition that the work of commissioners lies beyond the judicial power conferred in Article III. In such well-known cases as Ferreira and Gordon, (397) the Court refused to accept an appellate role in reviewing the preliminary work of non-Article III tribunals. In each case, Congress had failed to ascribe finality to the adjuncts' work, bringing the cases squarely within the finality principle of Hayburn's Case. Rather than a precedent that rejects judicial administration, in short, Hayburn's Case should be read as a precedent that insists on judicial finality.

3. Feigned Cases and Adverse Parties

In attempting to justify the adverse-party requirement, scholars also sometimes point to the hostility that courts now direct towards feigned or collusive cases, which were a commonplace of early federal practice but now are soundly repudiated. (398) Feigned cases, which have a long pedigree in English and American judicial proceedings, are cases constructed by the parties upon a contrived or assumed set of facts in order to obtain a judicial decree or decision on a point of law. (399) Importantly, however, the decisions that restrict the use of collusive cases do not actually question the power of the federal courts to hear noncontentious proceedings in general, but only collusive proceedings that assume the form of contentious ones. Consider Lord v. Veazie, (400) the decision that Justice Scalia (in Windsor) and many scholars have identified as an important early articulation of the adverse-party requirement. (401) There, Chief Justice Taney minced no words in decrying the parties' invocation of judicial power in collusive proceedings:
   It is the office of courts of justice to decide the rights of
   persons and of property, when the persons interested cannot adjust
   them by agreement between themselves,--and to do this upon the full
   hearing of both parties. And any attempt, by a mere colorable
   dispute, to obtain the opinion of the court upon a question of law
   which a party desires to know for his own interest or his own
   purposes, when there is no real and substantial controversy between
   those who appear as adverse parties to the suit, is an abuse which
   courts of justice have always reprehended, and treated as a
   punishable contempt of court. (402)

In accordance with these views, the Court dismissed an appeal after it became clear that the parties were not true adversaries but had conspired in presenting a feigned case that was meant to secure an advantageous statement of the law for use against an unrepresented third party. (403)

Given the potential for abuse of the rights of third parties, one can readily understand why the Court attempted to limit the use of feigned proceedings. Yet historians agree that feigned proceedings were a fairly commonplace tool of adjudication in the early Republic. (404) Previous work identifies property disputes and tax cases as primary exemplars of feigned cases. For example, in Hylton v. United States, the officials of the Treasury Department structured a feigned dispute to obtain a test of the federal carriage tax. (405) Similarly, in Pennington v. Coxe, the parties set up a wager agreement that would satisfy the amount-in-controversy threshold needed to procure review in the Supreme Court. (406) Other well-known examples of cases alleged to be feigned include Fletcher v. Peek, (407) McCulloch v. Maryland, (408) and Cohens v. Virginia, (409) where fictitious factual circumstances were pleaded in order to secure a test of the constitutionality of state laws. (410)

One can best grasp the early appeal of feigned proceedings when one understands their similarity to a modern declaratory judgment action. Most feigned proceedings enabled parties to secure a definitive judicial clarification of law or fact as the basis for ordering their affairs. In Hylton, the parties genuinely disputed the constitutionality of the carriage tax; ownership of 150 carriages was feigned only to ensure access to the Court's docket. Similarly, in Pennington, the feigned wager between the parties was designed to secure access to a federal trial docket for a resolution of a genuine dispute. (411) Taking account of these developments, the Court explained in Lord that amicable actions are "approved and encouraged, because they facilitate greatly the administration of justice." (412)

Yet the very idea of an agreed-upon dispute posed a threat to the interests of courts and third parties. Just as courts today issue declaratory judgments only in cases of "actual controversy," (413) so too courts in the eighteenth and nineteenth centuries worried that litigants would present amicable cases to obtain a legal pronouncement for reasons other than to resolve a genuine disagreement about the law. (414) Hence the idea, also expressed in Lord, that "there must be an actual controversy, and adverse interests." (415) The Court attempted to ensure compliance with this adverse-party limit by threatening lawyers who brought improper feigned cases with contempt sanctions. (416)

Lord thus introduces the idea that parties may contrive amicable proceedings to obtain a declaration of their respective rights only in cases of genuine uncertainty as to the law applicable to their own circumstances. When the parties lack adverse interests, feigned litigation often aims to secure a precedent rather than to resolve a dispute. Feigned cases to procure advantageous precedents became particularly troublesome during the Gilded Age, as railroads and other regulated entities hit upon ingenious strategies to structure private litigation that would necessitate the adjudication of constitutional issues. (417) In one such case, a railroad contrived to have a passenger bring suit for damages after seeking and being denied the opportunity to purchase a ticket at a new regulated rate. (418) In other cases, friendly shareholders would initiate a derivative suit to block the corporation from purchasing bonds issued by a federal agency, (419) and friendly trustees would request instructions as to the legality of a course of action in the face of feigned constitutional uncertainty. (420)

The Court's willingness to entertain more or less friendly constitutional challenges to government regulation came under fire from Progressives and New Dealers. In Ashwander v. Tennessee Valley Authority, Justice Brandeis spoke for four members of the Court in arguing against the friendly shareholder's derivative suit as a tool of constitutional adjudication. (421) Concurring in the majority's decision to uphold the Authority's role in the market for electricity, Justice Brandeis argued that the Court should not have reached the merits. (422) The first precept on Justice Brandeis's well-known list of justiciability limits focused on the need for adverse parties:
   The Court will not pass upon the constitutionality of legislation
   in a friendly, non-adversary, proceeding, declining because to
   decide such questions 'is legitimate only in the last resort, and
   as a necessity in the determination of real, earnest, and vital
   controversy between individuals. It never was the thought that, by
   means of a friendly suit, a party beaten in the legislature could
   transfer to the courts an inquiry as to the constitutionality of
   the legislative act.' (423)

Justice Brandeis knew from his own experience as an advocate that the record was crucial to the defense of the constitutionality of government regulation. (424) He presumably also knew that parties to a friendly dispute over the constitutionality of regulation could not be relied upon to develop a record that would ensure a searching evaluation of the law's justification and its impact on regulated entities.

Apart from helping to ensure that the Court could effectively perform its role in constitutional adjudication, Justice Brandeis's emphasis on the need for adverse parties was echoed by Congress's actions to secure a place for the government in the litigation of constitutional claims. In legislation enacted in 1937, one year after Ashwander, Congress called upon the district courts to notify the Attorney General of the United States of constitutional issues that arise in private litigation. (425) In addition, the legislation conferred a right of intervention on the federal government, enabling it to defend the constitutionality of federal statutes. (426) Now codified in Title 28, the federal intervention right has been buttressed by rules of procedure that oblige the parties in private litigation to perform the notification function. (427) Notably, upon intervention the government was to have the right to present "evidence" and was to enjoy "all the rights of a party and be subject to all liabilities of a party ... to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality." (428) Congress, then, sought to buttress the factual and argumentative record on which findings as to constitutionality were to be based. (429)

Congress displayed much the same concern with institutionalizing adverseparty procedures in adopting the Declaratory Judgment Act of 1934. (430) The act authorizes "courts of the United States" to declare "the rights and other legal relations of any interested party seeking such declaration." (431) But the act carefully limits the issuance of such declaratory judgments to cases "of actual controversy." (432) By authorizing declaratory judgments, the legislation significantly undercut the need for any further reliance on feigned or collusive suits to obtain the same sort of relief (thereby further pushing those proceedings to the margins of federal practice). By including a statutory requirement of an "actual controversy," moreover, the Declaratory Judgment Act addressed concerns that the granting of declaratory judgments would be akin to the impermissible issuance of advisory opinions. (433) Finally, the requirement of adverse parties helped to protect the interests of third parties from proceedings that might affect their rights.

The "cryptic" decision in Muskrat anticipated these statutory developments to some extent. (434) The case arose after Congress enlarged the number of tribal members who were to participate in a land allotment, thereby reducing the stake of the original members of the group. (435) When litigation was later filed seeking to enjoin the Interior Department from enforcing the later legislation, Congress authorized certain tribal members to challenge their reduced allotment by suing the United States in the court of claims. (436) When that suit was dismissed, the tribal members sought review under a provision of the law authorizing direct appeal to the Supreme Court. (437) The Court held that the matter lay beyond the power of the Article III judiciary. (438) In the Court's view, Congress was simply seeking an advisory opinion as to the constitutionality of the subsequent legislation, whereas the resolution of constitutional questions was limited to disputes between adverse parties. (439) Notably, the Court agreed one year later to address the issue in the more familiar context of adversary litigation between tribal members and the Interior Department. (440)

Time has not been kind to Muskrat. Judge Fletcher argued that Muskrat has been superseded by the recognized power of federal courts to issue declaratory judgments and by subsequent cases that exercise that power in more adventuresome contexts. (441) The Hart and Wechsler casebook reaches much the same conclusion, treating the case as "puzzling" and "cryptic" and suggesting that it would lack contemporary relevance if it did nothing more than cast doubt on the validity of declaratory judgments. (442) One might argue that the decision anticipates Justice Brandeis's effort to ensure (through the rejection of collusive claims) a proper record for constitutional adjudication. (443) But it does not cast doubt on the power of federal courts to entertain non-contentious proceedings assigned to them by Congress. Indeed, Justice Brandeis cited Muskrat in Tutun for the proposition that the presence of a case or controversy was vital for jurisdiction, without suggesting that its insistence on adverse parties posed any threat to the power of the federal courts to hear naturalization petitions. (444)
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Title Annotation:II. Scholarly Reactions to Ex Parte and Non-Contentious Proceedings through III. Contentious and Non-Contentious Jurisdiction, p. 1391-1440
Author:Pfander, James E.; Birk, Daniel D.
Publication:Yale Law Journal
Date:Mar 1, 2015
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