Adverse interests and article III: A reply

INTRODUCTIONArticle III extends "the judicial Power of the United States" to "all cases" arising under federal law, and to "controversies" between specified parties (for example, states against other states or their citizens).1 over the past century, the Supreme Court has asserted that Article III requires a dispute between adverse parties before a federal court can assert jurisdiction, and scholars have generally accepted that assertion. In a lengthy article, we challenged the conventional wisdom on textual and historical grounds.2 We acknowledged that Article III "Controversies" have been thought to require a dispute between adverse parties, but that several categories of federal law "Cases" require no such dispute. Instead, continuing a practice derived from Roman law, federal courts frequently exercise "non-contentious jurisdiction" over the registration or recognition of ex parte claims of right based on federal law.Responding to our article on non-contentious jurisdiction, Professor Ann Woolhandler has offered a qualified defense of the conventional wisdom.3 In arguing that Article III may incorporate an adverse-interest requirement, even if it does not strictly mandate adverse parties,4 Woolhandler refines some of our claims and contests others on a qualified basis. Woolhandler, however, does not directly address many key elements of our article, notably the textual and historical case we made for arguing that the "judicial power of the United States" includes both contentious and non-contentious forms of jurisdiction and for distinguishing between "Cases" and "Controversies" in Article III.5 Nor does she set out to refute the historical argument that non-contentious jurisdiction was an important category of judicial business in the Roman and civil law traditions and a likely feature of the conception of judicial power in the early Republic.6 She agrees that the exercise of federal judicial power in non-contentious applications for naturalized citizenship offers strong support for our claim.7 In the end, she concludes not that the evidence affirmatively supports an adverseness requirement, but that the evidence we presented does not quite carry the burden ofproof (which she seems to have assigned to us).8Professor Woolhandler has presented her case with customary skill, using the familiar tools of lawyerly discourse. When lawyers dispute, we frame the problem to our own advantage, draw lines, create categories, reason analogically, and assign burdens of proof.9 Woolhandler highlights not the practice of the courts of the early Republic, which included a cluster of non-contentious proceedings, but what people said about the work of the federal courts one hundred years later, at a time when certain jurists were developing revisionist accounts of the Article III reference to "Cases" and "Controversies."10 She thus emphasizes judicial statements from the late nineteenth and early twentieth century (and an earlier statement that Representative John Marshall made on the House floor in a political speech).11 Such an approach to history enables Woolhandler to privilege statements that appeared long after Article III was implemented and long after such leading figures as Chief Justice John Marshall (speaking as a judge rather than as a politician) and Justice Joseph Story (speaking as a judge and as a law professor) defined cases in Article III broadly enough to encompass both adverse-party claims and claims to register an interest through an original invocation of non-contentious jurisdiction (as in the naturalization cases over which they both presided).12 Woolhandler does not explain why we should prefer the revisions of the Gilded Age to the choices of the Framers.In Part I of this reply, we express appreciation for Professor Woolhandler's work and identify points of unstated agreement that emerge from a careful review of her Article. Part II identifies the areas on which we join issue. In our view, the civil law concept of non-contentious jurisdiction-a feature of Roman law, the legal systems of continental Europe and Scotland, and the civilian courts of England-provides a more coherent and workable explanation for the willingness of early federal courts to entertain proceedings lacking adverse parties than Woolhandler's explanation that some of these proceedings included or could have included parties with adverse legal interests. …