Pfander and Birk on the Adverse Party Requirement

James E. Pfander and Daniel D. Birk, Northwestern University School of Law, have posted Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, which is forthcoming in the Yale Law Journal.  Here is the abstract:    

The jurisprudence of Article III has so far failed to confront a fundamental tension in the theory of adverse parties. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom traces her injury to the other’s conduct. On the other hand, Congress has repeatedly conferred power on the federal courts to hear ex parte proceedings that feature no opponent at all. Such proceedings call upon the federal courts to play an inquisitorial role that has seemed hard to square with the nation’s commitment to an adversary system.

In this article, we offer a catalog of ex parte proceedings and the first general theory of how those proceedings fit within our largely adversarial federal judicial system. We argue that Article III embraces two kinds of judicial power: that over disputes between adverse parties, which was known in Roman and civil law as "contentious" jurisdiction, and that over ex parte and other non-contentious proceedings, which was described in Roman and civil law as voluntary or "non-contentious" jurisdiction. Non-contentious jurisdiction allows a party to seek a binding determination of a claim of right in the absence of an adverse opponent; it was incorporated into such familiar bodies of civil law as equity, admiralty, and ecclesiastical practice and promptly introduced into the federal judicial practice of the early Republic. It was non-contentious jurisdiction that allowed the federal courts to entertain such familiar ex parte proceedings as applications for naturalization, administrative proceedings in bankruptcy jurisdiction, guilty pleas and ex parte warrant applications, and to conduct inquisitorial proceedings in connection with the entry of default judgments.

Apart from casting doubt on the view that Article III embeds an unyielding constitutional requirement of adverse parties, the construct of non-contentious jurisdiction requires that we re-consider the injury-in-fact test of standing doctrine as well as the underpinnings of such judicial power standards as Hayburn’s Case and Tutun v. United States. Non-contentious jurisdiction also sheds new light on Article III’s elusive case-controversy distinction. Finally, by offering a theoretical account of practices that many view as aberrations in the exercise of federal judicial power, our examination of non-contentious jurisdiction better situates Article III within America’s broader legal inheritance.