09/13/2017

Jeffrey M. Schmitt: A Historical Reassessment of Congress's 'Power to Dispose of' the Public Lands
Michael Ramsey

Jeffrey M. Schmitt (University of Dayton - School of Law) has posted A Historical Reassessment of Congress's 'Power to Dispose of' the Public Lands (Harvard Environmental Law Review, forthcoming 2018) on SSRN.  Here is the abstract:

The Property Clause of the Constitution grants Congress the “Power to Dispose” of federal land. Congress uses this Clause to justify permanent federal landownership of approximately one-third of the land within the United States. Legal scholars, however, are divided as to whether the original understanding of the Clause supports this practice. While many scholars argue that the text and intent of the framers show that Congress has the power to permanently own land within the states, others contend that these sources demonstrate that Congress has a duty to dispose of all federal land not held pursuant to another enumerated purpose. This scholarly debate has become increasingly important in recent years, as a popular movement for state ownership of federal land has reemerged in the West. 

This Article argues that the debate over the history of the Property Clause should move beyond the Founding. The original public meaning of the text, intent of the framers, and precedent of the early Supreme Court simply do not resolve the issue of whether Congress’s Duty to Dispose includes the power to permanently retain land within the states. This Article therefore provides the first detailed examination of how Congress’s Power to Dispose has been understood since the Founding. It concludes that, although western extremists have repeatedly challenged Congress’s power when federal land policy has restricted western development, dominant opinion has always supported a broad construction of Congress’s power. In fact, those who favor federal land ownership have long argued that giving land to individual states would violate a constitutional obligation for Congress to use the land for the common benefit. When constitutional history is properly applied to Congress’s Power to Dispose, it therefore strongly supports federal land ownership.

(Via Larry Solum at Legal Theory Blog, who says: "Very interesting and recommended!").

I haven't looked at the issue closely, but it seems a stretch to say that Congress having the power to "dispose" of land implies a duty to do so. Nor does it seem that Congress needs an enumerated power to "retain" land, because the land does not belong to Congress.  Of course, the land (or other property) would need to be obtained for the United States pursuant to an enumerated power (by Congress or another branch), but once obtained Congress has -- by the same clause of Article 4, Section 3 -- the power to manage it (to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.").

Mostly I'm just happy Professor Schmitt uses "A Historical Reassessment ..." rather than the malign "An Historical Reassessment..."

09/12/2017

Lawrence Solan: Patterns in Language and Law
Michael Ramsey

Lawrence M. Solan (Brooklyn Law School) has posted Patterns in Language and Law (International Journal of Language & Law, Vol. 6, pp. 46, 2017) on SSRN.  Here is the abstract:

Our language faculty is rule-like in some ways, pattern-like in others, as Steven Pinker (1999) has shown. Much of syntax is describable a set of rules, whereas the range of meanings attributed to a word is best described in terms of patterns. Laws are typically written as rules, but they are written in words, many of which display pattern-like arrays of usage. Legal systems default to an expression’s “ordinary meaning,” requiring estimates of patterns of usage. Recently, advances in corpus linguistics have been adduced by judges and legal scholars in this regard. Furthermore, open-textured legal terms, including the word “pattern” itself, are by their nature more describable in terms of patterns of their application than in terms of hard-and-fast rules. Apart from linguistic issues in legal interpretation, legal systems value coherence, requiring that like things be treated alike, often focusing on patterns of how laws are applied. At times, however, these patterns uncover biases in a law’s application. This article attempts to describe how this duality in both linguistic description law interact with each other.

09/11/2017

Carissa Byrne Hessick on Corpus Linguistics
Michael Ramsey

At Prawfsblawg, Carissa Byrne Hessick (UNC): Corpus Linguistics and Criminal Law.  From the introduction:

In January of 2017, the Federalist Society hosted a panel on statutory interpretation at its annual faculty conference.  The panel promoted a new method for statutory interpretation: corpus linguistics.  Among the panelists was Thomas Lee, a former law professor at BYU who now sits on the Utah Supreme Court.  Justice Lee has used corpus linguistics in more than one opinion, and the BYU Law School has been promoting corpus linguistics through conferences.

It is easy to see why corpus linguistics is appealing.  It offers a new twist on textualism.  It promises to make the initial “plain” or “ordinary” meaning question of textualism a data driven inquiry.  At present, textualist judges rely on their own linguistic intuitions about the plain/ordinary meaning of a statutory term.  And if a judge finds that a statutory term’s meaning is plain, then she will not look at other non-textual sources, such as legislative history or certain canons of statutory construction.  The problem is, judges often disagree over what the plain or ordinary meaning of a term is.  As a result, textualism sometimes looks unpredictable or subjective.

Corpus linguistics tells judges to answer the plain/ordinary meaning question with a linguistics database search.  The corpus linguistics databases allow judges and lawyers to search for words to see how often they are used certain ways. And if the database says a term is more often used as X than Y, then corpus linguistics tells us that is the “ordinary meaning.” In other words, corpus linguistics promises us predictable and objective answers to textualism’s most important question.

... After quite a bit of writing and reflection, I have come to the conclusion that corpus linguistics is not an appropriate tool for the interpretation of criminal statutes.

I lay my concerns out more fully in this short essay.

Plus in the comments, Orin Kerr suggests:

I would think corpus linguistics has value to an originalist engaging in constitutional interpretation but less value to a textualist engaging in statutory interpretation. An originalist engaging in constitutional interpretation may want to know the original public meaning of a particular word or phrase, which is generally a matter of public usage in some time in the past. A study of public sources from that period might help illuminate that meaning to a modern reader, and a more rigorous study of those sources might give the modern reader greater confidence that a particular interpretation was the one the public would have taken at the time. On the other hand, I don't think of textualist approaches as generally involving the same act of reconstructing a public meaning. I think of textualism more a matter of understanding how a careful law-trained reader of the statutory text -- one versed in precedents and court rulings about that phrase -- thinks that language means. Given that, I'm less sure that a corpus linguistics approach can shed light on the meaning of a statute.

09/10/2017

John McGinnis on Judicial Appointments
Michael Ramsey

At Liberty Law Blog, John McGinnis: How Trump’s Judicial Nominees Put Democrats in a Bind.  From the introduction: 

Donald Trump’s judicial nominations have been the most successful part of a presidency that has often misfired.  The nominees are not only a tribute to the President but to an idea and to an organization. The idea is originalism—the notion that the Constitution’s provisions should be interpreted according the meaning they had at the time they were enacted. They should not become vessels for judges to update their meaning.

The organization is the Federalist Society.  It is established around the ideal of originalism, and enlists thousands of lawyers around the nation in defending it. Now more than thirty years old, it has gained in strength over the decades. And some of its best and most articulate members have become Trump’s nominees for the federal district and appellate courts.

The combination of a powerful idea and a far flung organization has made it easy for Republicans to unite behind the President’s nominees, as they have not yet been able to unite behind any other policy of importance. And the result has also been to make the Democrats look foolish and extreme, because originalism has a common sense appeal that is difficult to attack and the nominees have qualifications and abilities that are difficult to assail.

09/09/2017

William Kelley: Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument
Michael Ramsey

William Kelley (Notre Dame Law School) has posted Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument (Notre Dame Law Review, Vol. 92, No. 5, 2017).  Here is the abstract:

Justice Antonin Scalia wrote two major opinions considering the nondelegation doctrine. In Whitman v. American Trucking Associations, he accepted and applied a very broad, indeed virtually unlimited, view of Congress's power to delegate authority to administrative agencies that was consistent with the Court's precedents since the New Deal. In his dissent in Mistretta v. United States, however, he concluded that the constitutional structure formally barred the delegation of naked rulemaking power to an agency that was untethered to other law execution tasks. This essay analyzes Justice Scalia's nondelegation jurisprudence in light of the general jurisprudential commitments he championed throughout his tenure, in particular his preference for rules versus standards as a method of cabining judicial discretion and his devotion to constitutional originalism. The essay concludes first that Justice Scalia embraced a broad view of Congress's power to delegate because he (again, consistently with the Court's longtime understanding) believed that the line-drawing required for courts to police delegations was ultimately a matter of discretionary judgment that judges are unsuited to make. With respect to his nondelegation doctrine jurisprudence's consistency with originalism, it is a gap in his jurisprudence that he never took on that question. That gap is best understood, the essay suggests, by his attraction to the deferential nature of the Court's longstanding precedents and the doctrine of stare decisis.

This essay is part of the Notre Dame Law Review symposium on Justice Scalia.  The full issue is available here (contributions from Judge Brett Kavanaugh, Amy Coney Barrett (Notre Dame), me, Brian Fitzpatrick (Vanderbilt), Kevin Walsh (Richmond), Alan Meese (William and Mary), Abbe Gluck (Yale), Anthony Bellia (Notre Dame), William Kelley (Notre Dame), Bradford Clark (GW), Gary Lawson (BU), and Adrian Vermeule (Harvard)).  My essay is also available on SSRN: Beyond the Text: Justice Scalia's Originalism in Practice.

As to the nondelegation doctrine, Whitman was an atrocious opinion from an originalist perspective, regardless of whether the outcome was correct.   Although arguably defensible on the basis of precedent, I think it arose mainly from the Justice's concern over line-drawing problems (as Professor Kelley suggests).  Moreover, the respondents did a poor job of invoking originalist arguments.  Justice Thomas wrote, concurring in the majority opinion:

The parties to these cases who briefed the constitutional issue wrangled over constitutional doctrine with barely a nod to the text of the Constitution. Although this Court since 1928 has treated the "intelligible principle" requirement as the only constitutional limit on congressional grants of power to administrative agencies, see J. W Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928), the Constitution does not speak of "intelligible principles." Rather, it speaks in much simpler terms: "All legislative Powers herein granted shall be vested in a Congress." U. S. Const., Art. 1, § 1 (emphasis added). I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than "legislative."

As it is, none of the parties to these cases has examined the text of the Constitution or asked us to reconsider our precedents on cessions of legislative power. On a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders' understanding of separation of powers.

This failure to invoke originalist arguments would likely not happen today.  And unease over the constitutional foundations of the administrative state is stronger now as well.  If Whitman had come later, I think we would have seen a different set of briefs and opinions (although perhaps not a different result).

09/08/2017

New Book: "Supreme Court Expansion of Presidential Power" by Louis Fisher
Michael Ramsey

Recently published: Supreme Court Expansion of Presidential Power: Unconstitutional Leanings (University Press of Kansas 2017), by Louis Fisher (The Constitution Project/formerly historian with the Library of Congress).  Here is the book description from Amazon:

In the fourth of the Federalist Papers, published in 1787, John Jay warned of absolute monarchs who “will often make war when their nations are to get nothing by it.” More than two centuries later, are single executives making unilateral decisions any more trustworthy? And have the checks on executive power, so critical in the Founders’ drafting of the Constitution, held? These are the questions Louis Fisher pursues in this book. By examining the executive actions of American presidents, particularly after World War II, Fisher reveals how the Supreme Court, through errors and abdications, has expanded presidential power in external affairs beyond constitutional boundaries—and damaged the nation’s system of checks and balances.

Supreme Court Expansion of Presidential Power reviews the judicial record from 1789 to the present day to show how the balance of power has shifted over time. For nearly a century and a half, the Supreme Court did not indicate a preference for which of the two elected branches should dominate in the field of external affairs. But from the mid-thirties a pattern clearly emerges, with the Court regularly supporting independent presidential power in times of “emergency,” or issues linked to national security. The damage this has done to democracy and constitutional government is profound, Fisher argues. His evidence extends beyond external affairs to issues of domestic policy, such as impoundment of funds, legislative vetoes, item-veto authority, presidential immunity in the Paula Jones case, recess appointments, and the Obama administration's immigration initiatives. 

Fisher identifies contemporary biases that have led to an increase in presidential power—including Supreme Court misconceptions and errors, academic failings, and mistaken beliefs about “inherent powers” and “unity of office.” Calling to account the forces tasked with protecting our democracy from the undue exercise of power by any single executive, his deeply informed book sounds a compelling alarm.

And from the reviews:

“In this authoritative account, Louis Fisher demonstrates that federal courts since the 1930s have greatly expanded presidential power, and have done so beyond any fair reading of the original intent of the Framers and the text of the Constitution. They have done so through erroneous readings of historical precedent, the development of doctrines that are based on personal biases toward executive power, and through abdication of their responsibilities to adjudicate by seeking refuge in procedural dodges. Fisher argues that not only the courts should be held accountable for misleading approaches, biased doctrines, and abdication of function, but so should a large part of the public law scholarly community. For the most part legal scholars have not mined the historical record, nor questioned presumptions about executive competence. The result is that both judges and the scholars who comment on their work have legitimized executive power to an extent that has done serious damage not only to the constitutional system, but also to the viability and legitimacy of public policy. Fisher is the dean of public law scholars, and he has produced a hugely valuable study of the non-use and misuse of judicial power in legitimizing the vast expansion of presidential powers.”―Richard M. Pious, Adolph and Effie Ochs Professor Emeritus, Barnard College and Columbia University

"Louis Fisher’s richly documented latest book sets forth a compelling historical narrative of the American republic from 1789 to the present that constitutes a serious indictment of the Supreme Court’s unique contributions in creating a Presidency that possesses powers that are not only dangerous but are at odds with foundational principles of the constitutional order such as separation of powers and checks and balances. Fisher’s Supreme Court Expansion of Presidential Power is the culmination of decades of learning and consideration and should be required reading for anyone invested in the preservation of an American republic committed to democratic values, individual liberty, and the rule of law."― David Rudenstine, author of The Age of Deference: The Supreme Court, National Security, and the Constitutional Order

“Louis Fisher is the nation’s preeminent scholar on separation of powers issues. His mastery of both the big picture and the fine details shines through in this straight-forward, authoritative account of how the Supreme Court has helped to enable the aggrandizement of executive power. Supreme Court Expansion of Presidential Power: Unconstitutional Leanings is another essential contribution to Fisher’s invaluable library of scholarly work.”―Jeffrey Crouch, author of The Presidential Pardon Power

“Fisher once again shows why he is considered one of the preeminent constitutional scholars today. His latest book is a well researched and thought-provoking study of the expansion of presidential powers. Offering great insight Fisher explores how the judiciary has done much to aid the presidency in the accumulation of its powers, particularly in external affairs. The record Fisher presents should be both insightful and troubling for those who believe in constitutional governance. His book should be a must read for all.”―Mitchel A. Sollenberger, author of The President’s Czars: Undermining Congress and the Constitution

09/07/2017

The Original Meaning of the Fourth Amendment: What Does "the Place to Be Searched" Mean?
Mike Rappaport

Lately, I have been exploring the original meaning of the Fourth Amendment, which I am finding to be a fascinating subject.  The text of the Fourth Amendment is filled with significant interpretive questions.

Let me start with an issue that grows out of the language of the second portion of the Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A careful reading of the italicized language raises a question: why does the clause speak of “the place to be searched” in the singular, but “the persons or things to be seized” in the plural?  After all, it would have been more consistent for the Amendment to have read “the places to be searched, and the persons or things to be seized.”  Was this intentional, so that search warrants can only authorize the search of a single place?

I have certainly seen many people make fun of these types of textual arguments.  The idea that you would confer significance on a slight textual change seems ridiculous to them.  “There are important policy questions here that should not be resolved by small textual differences.”  But treating such small textual differences as consequential can make sense under both a textualist original public meaning approach and under an approach that treats the Constitution as written in the language of the law, which often follows a strong textualism.

Fourth Amendment scholar William Cuddihy believes that the historical sources strongly support the view that this textual difference was intended. In particular, he relies on  legal treatises at the time, state statutes, and federal statutes.

Cuddihy notes that the federal Collection Act “imposed the highest possible standard of particularity by restricting all federal search warrants to single structures, even if those structures were not houses.  Every warrant had to specify a single location: a house, store ‘or other place.’"

He also notes that “most states had standardized the specific warrant by 1789, and nearly all of those states, in turn, limited search warrants to single, not plural, locations.”  He writes:

Under the Massachusetts imposts of 1782-86, the informant designated, typically, the “particular dwelling house or store” that he suspected, and the warrant was confined to “such house or store.”  The corresponding Rhode Island act of 1786 provided a search warrant “particularly discriminating the Dwelling House, Store, Ware-house, or other Building.”  Also in 1786, Delaware enacted a warrant specifying a single “House, Out-house, Barn or other Place.”  A similar requirement existed in Pennsylvania. New Hampshire in 1777 and Virginia in 1787 established official forms for certain warrants that had only a single blank for the name of the lone person whose house was to be searched.

Finally, Cuddihy claims that “the legal treatises that Americans wrote and read during the Fourth Amendment’s formation impliedly repudiated multiple-specific warrants by providing examples of specific warrants that always confined the search to a single location.  By implication, any warrant that allowed several houses to be searched was unreasonable even if it specified those houses.”

This evidence, overall, seems reasonably strong, although one cannot know for sure until one actually looks at the primary sources.  One limitation, though, is that much of the evidence seems to involve a textual inference that reference to “a house” means a single house.  Not a problematic inference, but one would want some additional evidence.

There is some evidence that this issue was in the minds of people and therefore the text was not merely a coincidence, but actually spoke to a contended issue.  For example Cuddihy notes that “Benjamin Gale, who represented Connecticut in the Congress of 1789 [which proposed the Fourth Amendment], had earlier condemned multiple-specific warrants as infringements of ‘natural, civil, and constitutional rights.’”

John McGinnis on Original Methods Originalism
Michael Ramsey

At Liberty Law Blog, John McGinnis: Original Methods Originalism Is Public Meaning Originalism.  From the introduction:

Professor Larry Solum has written an excellent series of posts that that help clarify the question of whether public meaning originalism constrains judges. He both distinguishes the concept of constraint from other related concepts like determinacy and helpfully suggests a framework for empirically analyzing the degree of constraint that originalism provides.

Larry, however, makes one puzzling assertion in the first of these posts. He suggests that there are alternatives to public meaning originalism still supported by serious originalist scholars. He included as one of these alternatives “original methods originalism” – the view of originalism that Mike Rappaport and I have propounded. But original methods originalism is emphatically a form of public meaning originalism.

Briefly described, public meaning originalism is the view that the meaning of the Constitution’s text is that which would be attributed by a reasonable observer or reader at the time the relevant provision of the Constitution is enacted. Original methods originalism contends that the reasonable reader would follow the meaning that flows from the interpretive methods applied to a legal text of the Constitution’s kind. We defend that view by arguing further that the Constitution is written in the language of the law. Thus, a reasonable reader would recognize that the context of the document demands the use of legal terms and interpretive rules, particularly to clarify and make more precise terms and provisions that might otherwise seem unclear. ...

09/06/2017

Is DACA Unconstitutional? (Again)
Michael Ramsey

In announcing the winding down of the Deferred Action for Childhood Arrivals (DACA) program, the President yesterday said in part:

The legislative branch, not the executive branch, writes these laws – this is the bedrock of our Constitutional system, which I took a solemn oath to preserve, protect, and defend.

In June of 2012, President Obama bypassed Congress to give work permits, social security numbers, and federal benefits to approximately 800,000 illegal immigrants currently between the ages of 15 and 36.  The typical recipients of this executive amnesty, known as DACA, are in their twenties.  Legislation offering these same benefits had been introduced in Congress on numerous occasions and rejected each time.

In referencing the idea of creating new immigration rules unilaterally, President Obama admitted that “I can’t just do these things by myself” – and yet that is exactly what he did, making an end-run around Congress and violating the core tenets that sustain our Republic. 

Officials from 10 States are suing over the program, requiring my Administration to make a decision regarding its legality. The Attorney General of the United States, the Attorneys General of many states, and virtually all other top legal experts have advised that the program is unlawful and unconstitutional and cannot be successfully defended in court.

There can be no path to principled immigration reform if the executive branch is able to rewrite or nullify federal laws at will.

So is this right (that is, that DACA is illegal)?  At Volokh Conspiracy, Ilya Somin, anticipating this argument, says no

In part because the moral and policy case for DACA is so strong, many opponents of the program tend to focus on legal considerations. DACA does not in fact change any law or legalize any previously banned activity without congressional approval. It merely suspends enforcement of a law against a particular category of migrants.  Nonetheless, critics claim that it was illegal for the executive to adopt DACA without congressional authorization. I addressed this issue in some detail  back when DACA was first announced in 2012.

...

Most of the points I made in this 2016 article defending the legality of Obama’s later DAPA policy (which was rescinded by Trump in June) also apply with even greater force to DACA, since the latter is a much more limited program. Wide-ranging presidential enforcement discretion is unavoidable in a system where there is so much federal law and so many violators that the executive can only target a small fraction of them. In the 2016 article, I explain why presidents have the power to exercise their discretion systematically as well as on a “case-by-case” basis. 

While this may be right as a general matter, it seems wrong as applied to DACA.  As I understand it, it's not the case that DACA "merely suspends enforcement of a law against a particular category of migrants."  In The HillHans von Spakovsky and David Inserra argue

Unilaterally created by President Obama, DACA provides pseudo-legal status to illegal aliens brought to the U.S. as minors. It gives them a promise that they won’t be deported, as well as providing them with work authorizations and access to Social Security and other government benefits.

...

... [T]he federal courts prevented President Obama from implementing the similar “Deferred Action for Parents of Americans and Lawful Permanent Residents” program or DAPA. Like DACA, DAPA provided an administrative amnesty for illegal aliens and gave them work authorizations and access to government benefits.

The Fifth Circuit Court of Appeals upheld the injunction entered by a lower federal court against the DAPA program. Under our Constitution, Congress has plenary authority over immigration; the president only has authority that has been delegated to him by Congress. As the Fifth Circuit said, the fact that the president declined to enforce the law and remove illegal aliens “does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change.” Obama acted beyond his constitutional authority when he provided through DAPA pseudo-amnesty and government benefits that had not been authorized by Congress.

The DACA program suffers from exactly the same constitutional infirmity. 

That seems right as far as it goes.  As I've argued before, if DACA (and DAPA) provide affirmative benefits to undocumented immigrants (as they appear to do -- I've never heard any defender of the programs specifically show that they don't), then the programs cannot be defended as exercises of prosecutorial discretion.  The historical conception of prosecutorial discretion is simply that the executive would decline to prosecute.  The potential target of the prosecution would gain no change in legal status, because the executive power did not extend to changing legal status.  All the target would get is temporary and contingent relief from prosecution.

But von Spakovsky and Inserra also stop well short of proving their point.  Assuming they are right about DACA's effects, they are right that the President cannot implement the program without congressional approval.  However, they assume there has been no congressional approval.  Perhaps so, but the immigration statutes are voluminous and convey enormous discretion to the President.  If that discretion includes authority to establish DACA, then DACA is constitutional.

Professor Somin does make this argument, albeit as a sort of throwaway at the end of his recent post: 

I also note [in the 2016 analysis] that the policy of giving DACA and DAPA recipients work permits actually does have congressional authorization, based on a 1986 law that specifically permits employment of aliens who are “authorized … to be employed … by the attorney general.”

But that gets the emphasis backwards: the whole argument for DACA depends (or should depend) on whether the President has congressional authorization.  

It's true, as von Spakovsky and Inserra say, that the Fifth Circuit found that DAPA was unauthorized on administrative law grounds (not as a constitutional matter), but that decision was affirmed by an equally divided Supreme Court and isn't necessarily right.  Defenders of the DACA program would need to say it's wrong, or to distinguish DACA from DAPA.

In sum, much of the commentary on both sides fails to get the argument entirely right.  The President does not have independent executive power to change the legal status of DACA beneficiaries.  Trying to locate such an authority in the power of prosecutorial discretion is misconceived, even if one has a broad view of prosecutorial discretion.  But the President might have a delegated authority to change the legal status of DACA beneficiaries, depending on how one reads the immigration statutes (and as a constitutional law scholar, I do not have an opinion on that question).

09/05/2017

James Pfander and Daniel Birk: Adverse Interests and Article III: A Reply
Michael Ramsey

James E. Pfander (Northwestern University School of Law) and Daniel D. Birk (Eimer Stahl, LLP) have posted Adverse Interests and Article III: A Reply (Northwestern University Law Review, Vol. 111, No. 4, 2017) on SSRN. Here is the abstract:

Scholars and jurists have long sought an explanation for why the Framers of Article III distinguished “Cases” from “Controversies.” In a previous article that cataloged the exercise of federal jurisdiction over uncontested matters, such as pension claims, warrant applications, and naturalization proceedings, we tried to provide an answer to this question. We suggested that, at least as to “cases” arising under federal law, the federal courts could exercise what Roman and civil lawyers called noncontentious jurisdiction or, in the words of Chief Justice Marshall, could hear uncontested claims of right in the form prescribed by law. As for “controversies,” by contrast, the federal courts were limited to the adjudication of disputes between parties aligned as Article III specifies. Much that seems strange about the practice of federal jurisdiction becomes clear when viewed in light of our proposed interpretation. Thus, our article accounts not only for the difference in Article III’s text, but also for the refusal of the federal courts to hear uncontested matters of state law, such as some probate and domestic relations proceedings.

Our account also calls into question the claim that Article III embeds inflexible “injury” and “adverse-party” requirements in the definition of judicial power. It was those claims that triggered the response from Professor Ann Woolhandler, to which this Article briefly replies. Woolhandler argues that Article III requires not adverse parties, so much, as adverse interests. In the course of doing so, she embraces a late nineteenth-century revisionism that twisted the meaning of Article III. In the end, however, she fails to offer a coherent theory of the text of Article III or to explain why her newfangled adverse-interest construct better explains the history of judicial practice than the eighteenth-century construct of non-contentious jurisdiction with which the Framers were familiar.