The New Adverse-Party Rule Confronts Judicial Practice

This chapter describes the conflicts that arose as the new case-or-controversy requirement came to be seen as in conflict with the broad range of uncontested proceedings that had formed a traditional part of nineteenth-century federal practice. Courts, scholars, and litigants have questioned the power of federal courts to hear bankruptcy proceedings, petitions for naturalized citizenship, applications to approve testimonial immunity, warrant proceedings, petitions for habeas corpus relief, and a range of other matters. So far, at least, the U.S. Supreme Court has been reluctant to deploy its case-or-controversy rule to upset established forms of proceeding.

Toward a Constructive Constitutional History

This chapter explores the lessons for the theory of constitutional adjudication that emerge from this book’s account of the meaning of cases and controversies in Article III. Proposing a constructive or synthetic approach to constitutional interpretation, the chapter urges the U.S. Supreme Court to substitute a litigable interest standard for the modern case-or-controversy rule. Such an approach would enable the Court to uphold the right of individuals to pursue uncontested claims as authorized by Congress and to continue to insist on adversary presentations in the disputes that parties present to federal court for resolution. The constructive approach advocated here differs from the position sometimes advanced by originalists in that it seeks to accommodate the lessons of the eighteenth, nineteenth, and twentieth centuries in formulating a measure of the limits of judicial power.

The Progressive Response to Lochner: Limiting Justiciability

This chapter explains how the case-or-controversy requirement evolved in the decisional law of the federal courts in the first few decades of the twentieth century. Focusing on the views of Justices Louis Brandeis and Felix Frankfurter, the chapter details the way those jurists deployed the case-or-controversy rule to limit the power of federal courts to review and invalidate progressive legislation adopted to regulate the private sector. The chapter also describes resistance to the progressive program by scholars seeking to defend a role for the federal courts in issuing declaratory judgments.

Conclusion

So far, in the cases surveyed in this book, the Court has mostly deferred to Congress and to long-standing tradition, even in circumstances where tradition conflicts with some modern conceptions of the judicial power. Indeed, in many of the most interesting decisions upholding non-contentious jurisdiction, the challenge to the federal judicial role was based on the perceived demands of modern case-or-controversy rules. The pattern was set in ...

The Origins of Uncontested Adjudication

This brief chapter explores the origins of non-contentious or voluntary jurisdiction, tracing its appearance in Roman law and its incorporation into the practice of civil law systems of Europe. After examining uncontested adjudication in England, this chapter tracks its arrival in British North America. Building on English forms that were themselves rooted in civil law, colonial courts in North America used uncontested process to handle such familiar matters as the probate of decedents’ estates and the exercise of equity and admiralty jurisdiction.

The Nineteenth-Century Perspective on Federal Judicial Power

This chapter examines the way nineteenth-century jurists defined the words “cases” and “controversies” in Article III of the U.S. Constitution. It shows that federal courts agreed to hear uncontested applications to claim rights under federal law as “cases” under Article III. But the same courts refused to hear matters governed by state law unless they arose between opposing parties as “controversies” within Article III. This distinction between cases and controversies meant that a claim of right by a petitioner, such as that in a naturalization petition, would qualify as a case, even though the plaintiff did not join an adverse party from whom the plaintiff sought redress.

Uncontested Proceedings on Federal Dockets in the Early Republic

This chapter describes the forms of uncontested adjudication that appeared on the dockets of the federal courts in the early Republic. Prominent among these examples was the practice of petitioning on an ex parte basis for a grant of naturalized citizenship under a law the First Congress adopted in 1790 to assign such work to the federal courts. Other examples include warrant proceedings, prize and salvage litigation in the federal admiralty courts, and veterans’ pension claims. Federal courts in the period agreed to entertain such proceedings as proper subjects of Article III adjudication and treated the resulting judgments as final and binding determinations of the right in question. There was no suggestion that the case-or-controversy language, or anything else in Article III, foreclosed such adjudications.

Uncontested Adjudication and Standing to Sue

This chapter shows that modern standing doctrine cannot be defended by reference to the history and meaning of the text of Article III. Cases, as understood in antebellum America, did not require the plaintiff to seek redress for an injury in fact inflicted by an adverse party. Instead, the term was broad enough to encompass uncontested adjudication by those asserting a claim of right in an ex parte application. The chapter invites the U.S. Supreme Court to reformulate its rule to require only a “litigable interest,” a claim of right in the form prescribed by law. Such a formulation can accommodate some aspects of the Court’s modern doctrine and the tradition of uncontested adjudication.

The Judicial Response to the Administrative State

This chapter describes the way a requirement of contestation was introduced into definitions of federal judicial power in the latter half of the nineteenth century. The case-or-controversy requirement arose as a tool with which federal courts could refrain from lending support to the investigatory and regulatory initiatives of the growing administrative state. Justice Stephen Field played a central role in the introduction of the contestation construct, and it took hold at the Supreme Court in the twentieth century, as progressive Justices came to embrace contestation as an essential limit on the judicial role in constitutional litigation.

A Practical Guide to Uncontested Adjudication

This chapter provides a primer on best practices in uncontested adjudication. Drawing lessons from the antebellum experience, the chapter reiterates the idea that important constitutional limits on federal adjudication—including the judicial finality requirement in Article III and the due process requirement of fair notice—fully apply to uncontested matters. The chapter further explains the importance of the judicial role in ensuring full development of the factual record in uncontested proceedings. The chapter explains how federal courts might best handle the uncontested adjudication of prisoner petitions through closer attention to the best practices outlined here. It concludes with a discussion of the federal judicial role in probate and domestic relations matters.