Wednesday, June 23, 2021

Pfander's "Cases without Controversies"

James E. Pfander has published Cases Without Controversies: Uncontested Adjudication in Article III Courts (Oxford University Press):

This book offers a new account of the power of federal courts in the United States to hear and determine uncontested applications to assert or register a claim of right. Familiar to lawyers in civil law countries as forms of voluntary or non-contentious jurisdiction, these uncontested applications fit uneasily with the commitment to adversary legalism in the United States. Indeed, modern accounts of federal judicial power often urge that the language of the Article III of the U.S. Constitution limits federal courts to the adjudication of concrete disputes between adverse parties, thereby ruling out all forms of non-contentious jurisdiction. Said to rest on the so-called “case-or-controversy” requirement of Article III, this requirement of party contestation threatens the power of federal courts to conduct a range of familiar proceedings, such as the oversight of bankruptcy proceedings, the issuance of warrants, and the adjudication of applications for mandamus and habeas corpus relief. By recounting the tradition of naturalization and other uncontested litigation in antebellum America and coupling that tradition with an account of the important difference between cases and controversies, this book challenges the prevailing understanding of Article III. In addition to defending the power of federal courts to hear uncontested matters of federal law, the book examines the way the Constitution's meaning has changed over time and suggests a constructive interpretive methodology that would allow the Supreme Court to take account of the old and the new in defining the contours of federal judicial power.
–Dan Ernst.  TOC after the jump.  


Part One: Thesis: Uncontested Adjudication in the Federal Courts

1. Chapter One: The Origins of Uncontested Adjudication
2. Chapter Two: Uncontested Proceedings on Federal Dockets in the Early Republic
3. Chapter Three: Probate and Domestic Relations Proceedings
4. Chapter Four: The Nineteenth-Century Perspective on Federal Judicial Power

Part Two: Antithesis: The Progressive Restatement of an Emerging Case-or-Controversy Requirement

5. Chapter Five: The Judicial Response to the Administrative State
6. Chapter Six: The Progressive Response to Lochner: Limiting Justiciability
7. Chapter Seven: The New Adverse-Party Rule Confronts Judicial Practice

Part Three: Synthesis: Cases, Controversies, and Litigable Interests

8. Chapter Eight: Uncontested Adjudication and the Modern Case-or-Controversy Rule
9. Chapter Nine: Evaluating Defenses of a Requirement of Adverse Interests
10. Chapter Ten: Uncontested Adjudication and Standing to Sue
11. Chapter Eleven: A Practical Guide to Uncontested Adjudication
12. Chapter Twelve: Toward a Constructive Constitutional History