Academic journal article Northwestern University Law Review

Adverse Interests and Article III

Academic journal article Northwestern University Law Review

Adverse Interests and Article III

Article excerpt


"In every court," Blackstone wrote in 1768, "there must be at least three constituent parts, . . . : the actor, or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power."1 In 1800, Representative John Marshall interpreted the "Case[]"2 in Article III to incorporate a similar set of requirements: "[t]here must be parties to come to court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit."3 Numerous Supreme Court decisions reiterate the need for parties with adverse interests who will be bound by the results of the litigation.4

In addition, standing doctrine reflects the need for adverse interests that will be affected by the litigation. Standing requires not only a plaintiff who claims a legally cognizable interest that will be affected by the controversy but also a defendant who has in some sense caused injury to the plaintiff's interests and can provide redress. The causation may consist in the defendant's having an adverse legal interest that the plaintiff seeks to diminish or transfer to himself rather than that the defendant necessarily has disturbed the status quo.5 Under existing doctrine, though, the fact that Congress or a state legislature is willing to treat the parties as having sufficient adverse interests does not automatically make it so.6

While several scholars have defended adversity as an Article III requirement and criticized certain types of proceedings as failing to meet it,7 the adversity requirement also has its critics.8 In an impressive article in the Yale Law Journal, James Pfänder and Daniel Birk claim that adverseness is not required by Article III for "Cases" under federal law.9 They rely on a statement by Chief Justice John Marshall, as well as a similar statement by Justice Joseph Story, that federal courts may exercise jurisdiction over cases "when the subject is submitted to it by a party who asserts his rights in the form prescribed by law."10 The authors also provide numerous examples of what they call "non-contentious jurisdiction" in the federal courts-essentially, instances when courts determine issues ex parte.

After presenting their enumeration of non-contentious cases, Pfander and Birk divide their examples into two categories: ancillary and original non-contentious cases. The first category comprises "non-contentious features . . . that are ancillary to an actual or potential dispute."11 Their ancillary category includes default judgments, consent decrees, and guilty pleas.12 Given that these matters "arise in connection with a dispute between actual or potential adversaries,"13 examples in the ancillary category would not seem significantly to undermine an adversity requirement.14 Their second category, "actions that are originally noncontentious,"15 presumably poses a greater threat to the adversity requirement. The authors include in this category prize jurisdiction,16 remissions of fines,17 bankruptcies and equity receiverships,18 warrants,19 and benefits determinations such as petitions for pensions20 and for citizenship.21

In addition to providing examples and categories of non-contentious cases, Pfander and Birk minimize the apparent importance of cases in which the Court seemingly required adverseness. They argue that the Court's hostility to collusive cases was primarily directed against "collusive proceedings that assume the form of contentious ones," such as where friendly parties attempted to obtain decisions that would prejudice the rights of nonparties, or attempted to elicit constitutional precedent.22 Pfander and Birk argue that the Court's criticism of such proceedings did not manifest a broader requirement of adverseness.23 Similarly, they argue that federal judges' apparent hostility to hearing ex parte pension applications, as manifested in Hayburn 's Case,24 was principally directed against political branch review of judicial decisions rather than to the lack of adverseness. …

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