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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.