The Yale Law Journal

March 2015

Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction

abstract. Students of Article III have so far failed to resolve a fundamental tension in the theory of federal adjudication. 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 seeks redress for an injury caused by the other’s conduct. On the other hand, Congress has repeatedly conferred power on the federal courts to hear ex parte proceedings in which the petitioner sets up a claim of right without naming an opponent. Such proceedings, dating from the nation’s formative years and still extant today, call upon the federal courts to play an inquisitorial role that seems hard to square with the nation’s commitment to an adversary system.

In this Article, we catalog these ex parte proceedings and offer the first general theory of how they fit within our largely adversarial federal judicial system. We argue that Article III embraces two kinds of judicial power: power over disputes between adverse parties, which was known in Roman and civil law as “contentious” jurisdiction, and power over ex parte and other uncontested 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 without identifying an injury in fact or naming an adverse opponent; it was taken up by courts of equity and admiralty and promptly introduced into the federal judicial practice of the early Republic. In working to situate non-contentious jurisdiction within America’s broader legal inheritance, we offer a theoretical account of continuing practices that many view as aberrational. Our new account calls for a thorough reconsideration of the nature of the judicial power of the United States, and a reexamination of the Supreme Court’s gloss on Article III’s case-or-controversy requirement.

authors. James E. Pfander is Owen L. Coon Professor of Law, Northwestern University School of Law. Daniel D. Birk is Associate, Eimer Stahl LLP; Northwestern University School of Law, J.D. 2010. Thanks to the Northwestern Law faculty research program for supporting this endeavor; to the faculty workshops at Northwestern, UNLV, Cardozo, Virginia, King’s College London, the University of Edinburgh, University College Dublin, and to the Yale Law Journal’s Contemporary Legal Scholarship Reading Group for comments on an early draft; to Marcia Lehr and Maribel Hilo Nash at the Northwestern Law Library for help with sources; to Kevin Arlyck, Steve Calabresi, Dick Fallon, William Fletcher, Bruce Frier, Tara Grove, John Harrison, Michael Herz, Vicki Jackson, Emily Kadens, John Langbein, Evan Lee, Tom Lee, Thom Main, John McGinnis, Henry Monaghan, Jeff Powell, Bob Pushaw, Richard Re, Alex Reinert, Marty Redish, Dave Schwartz, Elaine Shoben, Kevin Walsh, Ann Woolhandler, and the editors of the Yale Law Journal for reactions and criticisms; and to Ana Sempertegui for her assistance in translating Spanish-language source material.


For students of federal jurisdiction, the Supreme Court’s encounter with the adverse-party requirement in the Defense of Marriage Act (DOMA) case, United States v. Windsor, was both overdue and disappointing.1 The Court has long held that federal courts can hear only “definite and concrete” controversies that touch upon “the legal relations of parties having adverse legal interests.”2 But the Court has failed to provide a coherent account of this “adverse-party requirement” or of how such a requirement can coexist with a variety of non-adverse or ex parte proceedings that have worked their way onto the docket of the federal courts. Since the 1790s, Congress has assigned pension claims, naturalization proceedings, and a surprisingly broad range of other matters lacking an adverse party to the federal courts. For example, the Foreign Intelligence Surveillance Act of 1978 (FISA), a subject of recent controversy, requires the government to obtain an ex parte federal-court order to conduct certain kinds of electronic surveillance but makes no provision for an adverse party ever to contest the government’s application.3 Aside from a decision some ninety years ago addressing the power of the federal courts to naturalize aliens,4 the Court has failed to wrestle with the constitutionality of non-adverse and ex parte proceedings.

Windsor, unfortunately, did little to clarify matters. Doubts as to the presence of adverseness had arisen early on, when the government insisted on enforcing DOMA but agreed with its nominal opponent, Edith Windsor, that the law violated her constitutional rights by denying her the beneficial federal tax treatment she would have received had she been the surviving spouse of a man instead of a woman.5 Yet the opinion by Justice Kennedy for a five-Justice majority announced that the federal government’s agreement with Windsor did not deprive the Court of power to reach the merits.6 For the majority, the requirement of “concrete adverseness” was a prudential element of standing doctrine, one that appropriately informed the Court’s discretion but did not inflexibly compel party opposition as a jurisdictional prerequisite at every stage of every case.7 The Court did not offer much by way of support for its conclusion that such a requirement existed or, if it did, why it might merely be a matter of prudence; the Court took no notice of the many instances in which the federal judiciary, without first consulting constitutional limitations or prudential considerations, proceeds in the absence of party adverseness.8

Justice Scalia’s sharply worded dissent also added little to our understanding of the adverse-party requirement. To be sure, Justice Scalia viewed the rule not as a “‘prudential’ requirement that we have invented,” but as “an essential element of an Article III case or controversy.”9 Moreover, Justice Scalia attempted to connect the adverse-party restriction to the text of Article III, placing some emphasis on the fact that the term “controversy” connotes a live dispute between opposing parties.10 But Justice Scalia did not address the meaning of Article III’s grant of “judicial power” or of its reference to “cases”; both terms have suggested to others, including possibly Chief Justice John Marshall and Justice Joseph Story, that federal courts may do more than simply resolve disputes between adversaries.11

As for history, Justice Scalia depicted Article III’s case-or-controversy limits as reflecting the traditional notions of adjudication inherited from early Americans and our “English ancestors,”12 an echo of Justice Felix Frankfurter’s earlier contention that the federal judicial power extends only to the forms and actions of the English courts at Westminster.13 This emphasis on England and the practice of the (mostly common-law) courts at Westminster, however, not only overlooks the fact that the English Court of Chancery, a non-common law court sitting at Westminster, exercised jurisdiction over certain ex parteand non-adverse matters; it also tends, in its focus on the common law, to obscure the range of alternative sources on which the Framers drew in crafting Article III.14 It was mainly in the equity, admiralty, and probate courts of the eighteenth century, where judges rather than juries bore primary responsibility for fact-finding, that the Framers were to encounter the range of ex parte proceedings that made their way onto federal court dockets in the early Republic.15Justice Scalia’s common-law traditionalismthus brought us little closer than did Justice Kennedy’s prudentialism toward resolving the tension between the theory of the adverse-party requirement and the reality of federal court practice.

Few scholars have attempted to address the tension by exploring the textual and historical underpinnings of the adverse-party requirement.16 Fewer still have considered the requirement in light of the non-adverse practices of the federal courts. To be sure, some students of constitutional history have called attention to certain early ex parte or non-adverse proceedings that appear very much at odds with an adverse-party requirement.17 Others have identified more modern examples of departures from our adversary ideal, such as certain actions in bankruptcy administration, consent decrees, and settlement class actions.18 Still others have attempted to justify particular ex parte practices, such as search and arrest warrants, by highlighting the possibility that related adverse-party litigation might ensue.19 Yet, to our knowledge, no one has conducted a comprehensive assessment of the non-adverse proceedings of the federal courts or attempted to situate them within a coherent theoretical framework. Instead of attempting to develop a theory that can account for the federal courts’ willingness to hear both adverse-party disputes and non-adverse proceedings, most scholars who have confronted the issue tend to treat the non-adverse practices they discover as aberrational vestiges of an earlier day,20 or as anomalies that have become too entrenched to question.21

Beneath the surface of this judicial and scholarly neglect lies a deeply ingrained set of assumptions about the adversarial character of the judicial system of the United States. In an adversary system, the parties maintain substantial control over the development of the legal issues and evidence bearing on the resolution of their dispute. Judges play a more passive role as neutral arbiters of disputes presented to them by the parties.22 This passivity contrasts with the more active role of judges in European and other civil-law inquisitorial systems. There, judges develop the factual record of the case and enjoy some control over the legal issues to which they will most closely attend. The attorneys stay on the sidelines to some degree, particularly during the fact-finding process.

Although the contrast between the Anglo-American adversary system and the inquisitorial systems of continental Europe may be slightly overdrawn,23 American lawyers and judges are steeped in the adversarial ideal,24 and courts in the United States mainly continue to profess adherence to the adversarial model.25 Indeed, one can sense that the adversary ideal has come to be perceived as yet another feature of American exceptionalism—that is, as a deliberate departure from and improvement upon the practice of European countries of which Americans should be justly proud.26 As Amanda Frost has noted, inquisitorial judging has become something of an “epithet among American judges,” most of whom seek to avoid even a “whiff of its judge-dominated procedures.”27

This devotion to the adversary tradition tends to encourage strong statements of the adverse-party requirement and to cast doubt on the power of federal courts to entertain ex parte and non-adverse proceedings. After all, in many of these proceedings, the courts determine petitions for recognition of a right or benefit—such as naturalized citizenship—in almost the same way as administrative agencies oversee applications for Social Security benefits or immigration status. To rule on such a petition, the judge must investigate the factual and legal justification for the relief sought, often without the appearance of an adverse party. Such uncontested proceedings present a challenge, especially for federal judges who lack the training, administrative support, and inclination to conduct their own investigations. Modern observers justifiably view such inquisitorial ex parte practices as inconsistent with the adversary ideal. Consider, for example, the thorough critique of settlement class actions offered by Martin Redish and Andrianna Kastanek.28 The two authors argue that settlement class actions violate Article III’s adverse-party requirement, which they view as a “logical outgrowth of the nation’s commitment to an adversary system.”29 Yet, non-adverse proceedings account for a significant part of the dockets of federal courts.

In this Article, we offer a solution to the puzzle of why federal courts, limited by Article III and guided by the adversary ideal that animates so much of American procedural exceptionalism, may properly entertain ex parte and certain other non-adverse proceedings. We suggest that the answer lies in recognizing that federal courts may constitutionally exercise not one but two kinds of judicial power: power to resolve disputes between adverse parties and power to entertain applications from parties seeking to assert, register, or claim a legal interest under federal law. The first power, familiar to those practicing within an adversary system, was known in ancient Rome and to civil-law lawyers of the eighteenth century as “contentious” jurisdiction and extended to the resolution of disputes between parties. The second, less familiar power, was known in Roman and civil law as “voluntary” or “non-contentious” jurisdiction and extended to the registration of contracts, the application for legal benefits, and the recordation of a legal status or interest. Much like federal courts hearing ex parte proceedings today, Roman tribunals and the civil-law European courts that succeeded them often exercised non-contentious jurisdiction in the course of performing administrative functions on an ex parte or consensual basis. The existence of a genuine dispute between adversaries was not essential to the exercise of non-contentious jurisdiction; indeed, parties appeared before the court either alone or in openly feigned contests, seeking a decree that would legalize a transaction or help them structure their affairs.

On our view, the evidence supports an inference that the Roman-law tradition of non-contentious jurisdiction was taken up by the civilian lawyers in continental Europe and Britain, made its way to the American colonies, and came to characterize a variety of proceedings familiar to the Founding generation. Proceedings in probate and admiralty jurisdiction in England and the colonies were governed by civil law, and both proceedings featured elements of non-contentious jurisdiction. Bankruptcy proceedings, an outgrowth of estate administration by the ecclesiastical courts and courts of equity, included administrative chores that did not invariably feature adverse parties. English and Scottish law books in the eighteenth century described the difference between contentious and non-contentious jurisdiction.30 Even Blackstone’s Commentaries described non-contentious forms of practice, distinguishing “voluntary” from “contentious” jurisdiction in the probate of wills and granting of administration.31 Justices of the peace, the workhorses of eighteenth- and nineteenth-century American adjudication, resolved disputes and handled a range of legislative and administrative chores at the county level.32 All these forms of non-contentious jurisdiction were part of the complex and cosmopolitan legal world in which the lawyers of the Framers’ generation practiced law, and many of these forms found their way onto the dockets of the first federal courts.

Evidence from the early Republic also suggests that the Framers viewed the judicial power with which Article III courts were invested as encompassing the exercise of non-contentious jurisdiction. Article III extends the judicial power to “cases” arising under federal law and to “controversies” between specified parties.33 Whereas the latter term connotes a dispute between opposed parties (and does much of the textual work in arguments for an adverse-party requirement), the former term has proved more elusive. Some scholars have argued, despite the tendency of the Supreme Court to conflate the two terms, that the term “case” confers a broader power than simply that of dispute resolution.34 Non-contentious jurisdiction may partly explain why the Framers chose to distinguish between cases and controversies in Article III. As we argue below, the term “case” includes not just disputed adverse claims, but also certain petitions brought on an ex parte basis by a party seeking to assert claims within the bounds of the law. Indeed, such early exponents of federal jurisdiction as Chief Justice Marshall and Justice Story defined the term “case” capaciously enough to include ex parte submissions, thereby giving voice to a principled distinction between such “cases,” on the one hand, and “controversies” arising between adverse parties and subject to federal diversity jurisdiction, on the other.35

The insight that the federal court system can consciously exercise both contentious and non-contentious jurisdiction without violating constitutional strictures or historical norms strikes us as surprisingly useful but profoundly unsettling. On the useful side of the ledger, the recognition of non-contentious judicial power provides a novel solution to a serious problem of coherence in the workaday world of the Article III judiciary by explaining how federal courts can hear both adversary disputes and certain ex parte and non-adverse proceedings. The proposed dual-power solution also fits well with the text, structure, and history of Article III, and it nicely explains admiralty and equity practices at the time of the Framing. In addition, by formulating a theory for the ex partematters already entertained by federal courts, we hope to provide a framework for evaluating those proceedings’ compliance with necessary jurisdictional predicates.

On the other hand, few notions seem more central to our conception of Article III courts than that they serve as tribunals for the resolution of concrete disputes between adverse parties and perform their law-exposition functions best in that setting. Recognition of non-contentious jurisdiction challenges this familiar conception of the Article III judiciary and forces courts and scholars to confront the inadequacy of current doctrines, such as the adverse-party requirement and the injury-in-fact test for standing. In addition, the recognition of non-contentious jurisdiction poses a potential risk to the rights of third parties. Finally, one might worry that the formal recognition of the propriety of non-contentious jurisdiction will encourage Congress to assign new administrative chores to the federal courts, burdening them with matters that that they are not institutionally equipped to adjudicate or that could be better handled by administrative agencies and other non-Article III actors.

In putting forward a theory of non-contentious jurisdiction, we propose to achieve greater coherence without calling for a dramatic transformation of the work of the Article III judiciary. We therefore suggest that the federal courts maintain a distinction between their contentious and non-contentious jurisdiction. On the contentious side, federal courts should continue to insist, in the main, on concrete disputes between genuine adversaries.36

On the non-contentious side, we develop a set of guidelines to which federal courts should adhere as they entertain the administrative or ex parte matters that Congress has assigned to them. They should, for example, continue to apply elements, some familiar, some adapted, of the case-or-controversy rule and of standing doctrine. Thus, while no adverse party need appear in non-contentious proceedings, federal courts should exercise jurisdiction only if the party invoking federal power has a concrete interest in the recognition of a legal claim. In a revision of the traditional standing test, courts should decide a question of law only if the party’s entitlement to recognition of the right sought necessarily turns on resolution of that question. The courts also should exercise non-contentious jurisdiction only where they have been called upon to employ judicial judgment in the application of law to the facts and only where their decisions will enjoy the finality long viewed as essential to the federal judicial role. The courts must be especially mindful of the potential for cases heard on the non-contentious side of their dockets to affect the rights of absent parties, and due process will continue to require that third parties receive notice of, and an opportunity to participate in, matters that concern them. We derive these guidelines from practice and use them to review, critique, and refine the exercise of non-contentious jurisdiction in the courts of the United States.

We begin in Part I with a catalog of the ex parte and other non-contentious matters that have been assigned to federal dockets. Part II shows that scholars have not sufficiently accounted for the appearance of these proceedings, even as the Supreme Court has quietly validated them as proper objects of judicial power. Part III proposes to reconcile theory and practice, offering a historical account of contentious and non-contentious judicial power and suggesting that both modes of proceeding were proper subjects of federal judicial cognizance. In particular, Part III shows that non-contentious jurisdiction made an early appearance in federal practice in the United States in the form of naturalization, pension, warrant, and other applications and helps to explain the distinction between “cases” and “controversies” as used in Article III.37 Part IV develops our theory of non-contentious jurisdiction, proposing a further distinction between what we call “original” and “ancillary” non-contentious proceedings and setting forth guidelines for their adjudication. Part IV also examines the broad range of puzzles that our theory can help to solve. We show that the concept of non-contentious jurisdiction assists in the evaluation of current ex partepractices; provides a new understanding of the injury-in-fact requirement; better defines and limits the “probate exception” to federal jurisdiction; and helps to clarify the contested boundaries between judicial, administrative, and ministerial work.

I. non-contentious proceedings in the federal courts

Scholars and jurists widely accept the proposition that the federal judicial power can be exercised only when a court is presented with a concrete dispute between parties possessed of adverse legal interests.38 This “adverse-party requirement” complements other justiciability doctrines that limit the constitutional or prudential jurisdiction of federal courts, such as finality, standing, mootness, and the prohibitions on issuing advisory opinions and addressing political questions.39 Many believe that the adverse-party requirement serves to circumscribe the role of federal courts by preventing them from interfering with the prerogatives of the states and of the political branches of the federal government unless required to do so by the presence of a live dispute.40 Adverseness is also said to protect the interests of absent third parties and to enable courts to make decisions with the benefit of a full record and a comprehensive understanding of the arguments bearing upon questions implicated by the case.41 Indeed, the Supreme Court has treated decisions rendered without full adversarial briefing as entitled to less precedential weight than decisions rendered on fully developed records.42

But the adverse-party requirement sits uneasily with the reality of federal judicial practice. In fact, since their establishment, federal courts have entertained a wide variety of ex parte and other proceedings lacking an adverse party and have consistently upheld the judicial role in such proceedings against challenges to their propriety under Article III of the Constitution. Moreover, non-contentious proceedings often call upon the courts to exercise core judicial functions, such as fact-finding, the determination of questions of law, and the application of the law to the facts of the case.43 To provide a sense of the sheer scope of the gap between the adverse-party requirement in theory and the diverse reality of federal court practice, the sections that follow catalog many of the non-contentious proceedings overseen by the Article III judiciary.44 As we will see, some non-contentious matters begin with an original application for relief, while others unfold in proceedings ancillary to a dispute between parties with opposing interests.

A. Government Benefits

We begin with ex parte court proceedings as a method for the determination of government benefit claims in the early Republic.45 Congress apparently chose to rely on the federal courts to hear such claims in part because of the absence of the sort of federal administrative apparatus available today. Aside from the postal service, customs collectors, district attorneys, marshals, and lighthouse keepers, early Congresses had little administrative capacity at their disposal46 and understandably turned to the federal courts to evaluate benefit claims.

1. Naturalization Proceedings

Applications for citizenship appeared on federal dockets shortly after the adoption of the nation’s first naturalization statute in 1790. The 1790 Act provided for an applicant to submit a petition for naturalization to “any common law court of record.”47 This formulation was broad enough to encompass both state and federal courts, and federal judges issued naturalization judgments under its authority;48 later, the 1795 Act expressly conferred concurrent authority on the state, lower federal, and territorial courts to entertain naturalization petitions.49 Along with the petition, the applicant was required to submit evidence sufficient to satisfy the court of the applicant’s good character and residence in the United States.50 Assuming the applicant made these showings, the Act called upon the “court,” not the judge, to administer an oath in which the applicant pledged to support the Constitution.51 Finally, the Act provided for the clerk to record the application and the proceedings, memorializing the court’s conclusion.52 The Act made no provision for the prospective citizen to name the government (or its officers) as an opposing party. Nor did it specifically allow for the government to intervene or seek the cancellation of a naturalization judgment.53

The failure to require or even provide for the appearance of an adverse party does not appear to have raised doubts in the minds of legislators or judges as to the judicial nature of the naturalization proceeding. Indeed, the Act’s referral of these matters to “courts of record” tends to underscore their judicial quality. Courts of record enjoyed a special status in Anglo-American law: they conducted open proceedings on “court” days,54 and their judgments, part of the court’s formal record, were considered conclusive unless modified through some special proceeding.55 The Supreme Court has long treated the ex parte consideration of naturalization petitions as an appropriate exercise of judicial power. In Ex parte Fitzbonne, an unreported decision from 1800, the district court resolved an issue of law that had arisen in a naturalization proceeding, namely, whether a statutory prohibition on the naturalization of citizens of a country at war with the United States applied to French citizens during the quasi-war with France.56 The district court decided that the countries were at war, and Alexander Dallas, the Court’s reporter and the attorney for the petitioners, sought review by petitioning the Supreme Court for a writ of mandamus.57 The Court agreed to hear the matter and ordered the district court to proceed with the naturalization proceeding, apparently concluding that French citizens were eligible for naturalization in the federal courts.58

2. Revolutionary War Pension Claims and Hayburn’s Case59

The oft-told story of Hayburn’s Case begins in 1792, when Congress assigned the federal circuit courts responsibility for reviewing the pension applications of disabled war veterans.60 The statute called for the claimant to file a petition with the court, along with supporting evidence of military service, rank, and related information.61 The statute did not, however, require the veterans to join the government as an opposing party. In passing on these petitions, the circuit courts were to conduct a physical examination of the veteran, assess the extent of the injury, and prepare an opinion as to the degree of disability and the proper compensation.62 The court’s decision, together with the veteran’s supporting evidence, were to be forwarded to the Secretary of War for review.63 Assuming there was no “imposition or mistake”—as adjudged by the Secretary and reviewed by Congress—the petitioner would be added to the pension list for submission to Congress.64 Hayburn’s Case reports that three circuit courts rejected the pension scheme, in part because the Secretary’s revision power rendered the courts’ decisions non-final, and in part for reasons that have been the cause of frequent speculation.65

3. Remission and Mitigation of Forfeitures

Tucked away in the history of revenue collection in the early Republic, a curious provision for the mitigation or remission of penalties and forfeitures appears to blur the lines of separation between the departments of government. The revenue laws of 1789 imposed duties on imported goods as well as a fee on the “tonnage” of the vessels engaged in the carrying trade.66 Congress assigned collection of these taxes to a group of federal collectors, surveyors, and naval officers, all appointed by the President to work one of many revenue districts along the coast.67 The revenue laws imposed strict rules of transparency: merchants involved in the import business were obliged to declare the goods they proposed to import and to pay the specified duties.68 If they failed to do so, or if they attempted to smuggle goods into port, they were subject to fines and penalties enforced by the admiralty courts.69 Most dramatically, informers were encouraged to bring suit for violations of the revenue laws against the offending vessels, seeking a forfeiture of ship and cargo for the use of the United States.70 Informers were entitled to keep a portion of the value of any forfeited property.71

Concerned with the relative harshness of these punishments, Congress adopted legislation in 1790 that conferred power on the Secretary of the Treasury to mitigate or remit penalties and forfeitures.72 These powers came into play when, in the Secretary’s opinion, the violation had occurred without “wilful negligence or any intention of fraud.”73 The decision was to be made on the basis of a record assembled by the federal judge in the district where the forfeiture occurred.74 To apply for relief from the forfeiture, the petitioning party was required to submit a petition for remission to the district court, along with a statement of the pertinent “circumstances.”75Upon submission, the district judge was directed to notify interested parties, conduct a summary (that is, non-jury) inquiry into the matter, and attach a statement of the facts to the petition for transmission to the Secretary.76 Although interested parties (usually, the customs officers who had a financial interest in the proceeds) could appear, their presence was not required; the district judge could proceed to assemble a factual record even where no adverse party came forward to contest the petition for remission.77 As with naturalization petitions, federal courts have treated petitions for remission or mitigation as falling within the judicial power of the United States.78

B. Transfers of Property

The federal courts also exercised jurisdiction over ex parteand non-contentious transfers of property. In the eighteenth and nineteenth centuries, before the advent of contemporary due process protections,79 in rem proceedings in probate and admiralty were commonly brought in English and American courts to secure a transfer of title to property that was regarded, in the colorful parlance of the day, as binding on “all the world.”80 Often, these in rem proceedings began and even continued on an ex parte basis. Probate in the “common form” began with an application for the admission of a will to probate by the party named as the will’s administrator.81 Similarly, the captors of a vessel claimed as prize would initiate proceedings by filing a petition (or “libel”) with the admiralty court.82 While the probate and admiralty courts welcomed the appearance of adverse parties, the court’s power to transfer title in the property did not depend on their presence.83 It was possible, therefore, that an ex parte disposition could foreclose the claims of interested parties who had not received any personal notice of the pendency of the proceeding.84 Yet the courts nonetheless took the position that such dispositions were conclusive judgments, binding in the absence of fraud.85

1. Prize and Salvage Cases

Although the “probate exception” kept—and keeps—most personal estate proceedings out of the federal courts,86 federal courts sitting in admiralty possessed a considerable docket of often non-contentious property transfer actions in the form of prize and salvage cases. Prize claims were a commonplace of eighteenth- and nineteenth-century seagoing warfare; governments authorized both the officers of their navies and certain duly licensed privateers to intercept and claim as prize the merchant ships and naval vessels of opposing nations.87 The administration of prize claims occupied the lion’s share of the dockets of the colonial vice-admiralty courts and, later, of the state admiralty courts and the federal Court of Appeals in Cases of Capture under the Articles of Confederation and the federal admiralty courts of the early Republic.88 Salvage was awarded to a crew that helped to save a stranded or damaged vessel or re-took a friendly ship that the enemy had claimed as prize.89

Much like probate proceedings, prize and salvage claims began with the ex parte submission of a petition (again, here called a “libel”) to the proper court, seeking an order that would institute the condemnation process, an inquisitorial process—characteristic of admiralty proceedings—in which the court would demand all of the ship’s records and issue commissions to take deposition testimony from those involved in the vessel’s capture.90 If, on the basis of the evidence collected, the court found that the vessel qualified as one subject to capture or salvage, the court would enter a decree authorizing the sale of the vessel and its cargo.91 The legal effect of prize decrees did not depend on the appearance of any opposing party, and indeed section 30 of the Judiciary Act of 1789 recognized that no adverse party might even be named;92 on many occasions, presumably, the captured vessel was so obviously a good prize that no one bothered to contest the fact. But the court would nonetheless proceed to decree in such a case.93

While the task of administering probate estates fell to the state courts, federal courts were assigned jurisdiction over claims of prize and capture.94 Rules of procedure promulgated by the First Congress declared that “civil law” process was to govern proceedings in federal courts of admiralty (as well as in suits brought in equity).95 Federal courts sitting in admiralty accordingly followed the inquisitorial model customary of admiralty proceedings in English and continental civil-law courts, decreeing good prize and ordering the sale of captured vessels.96 Given the widespread view that such matters of prize and capture were proper subjects of federal adjudication, no one appears to have raised doubts about the power of the federal courts to adopt an inquisitorial model or to entertain the proceedings on an ex parte basis.97 Indeed, providing dispositive legal decrees regarding naval captures played a crucial role in national defense and international relations in the early Republic,98 and the fact that this task was assigned to federal district courts sitting in admiralty (as it was assigned to the admiralty courts in England) suggests that the Framers expected the federal courts to play a role in the administration of law beyond mere dispute resolution.

2. Trademark Seizure Orders

Although prize cases have fallen by the wayside, Congress has relied on federal courts to exercise similar functions in contemporary forfeiture proceedings. In 1984, for example, Congress amended the Lanham Act to authorize federal courts to issue ex parte seizure warrants aimed at the sellers of goods infringing on a valid trademark.99 Exercising this power, federal courts have issued broad ex parte seizure orders authorizing the owners of a trademark to take counterfeit goods off the market in the days surrounding major events.100

The statute contemplates post-seizure proceedings during which the target of the seizure order may contest the order101 and provides for the award of compensatory and punitive damages and attorneys’ fees in cases of wrongful seizure.102 But many such seizures are never contested. A close student of the practice reports that many successful trademark owners use the seizure order simply to get the counterfeit goods off the street and never pursue claims for damages against the sellers of the offending goods (who also never show up to claim them).103

C. Bankruptcy

The administration of an estate by courts exercising equitable powers has long featured a combination of both adverse and non-adverse proceedings.104 One can see this combination reflected in the wide range of familiar forms of estate administration, including the probate matters discussed above, equity receiverships, equitable trust supervision, and federal bankruptcy.105 Although these forms have evolved in different directions, they apparently spring from common roots in the civil or canon law, and all feature administrative and ex parte elements in addition to formal adverse-party disputes.106

1. Initial Appointment

Most estate proceedings begin with a petition that commences the administrative process through the appointment of an individual who will bear a fiduciary obligation to manage the affairs of the estate.107 The names of these fiduciaries vary: trustees oversee estates, including those in bankruptcy; administrators conduct intestate successions; guardians serve on behalf of minors; receivers manage an equitable receivership; and executors handle the probate of wills and the distribution of the testators’ property.108

Petitions for judicial involvement may be contested, but they need not be contested in order for the court to begin the proceeding and appoint a fiduciary. In bankruptcy, for example, the submission of an uncontested or voluntary petition may be filed in the absence of any dispute and will initiate the proceeding and occasion the creation of a bankruptcy estate.109 In such an uncontested proceeding, the court has the power to distribute the non-exempt assets (if any) among the creditors.110 If there are no assets, and no creditors appear, the court nonetheless has power to provide the debtor with a discharge (and fresh start).111

2. Administrative Fees

The judicial administration of bankruptcy cases often entails the issuance of orders approving the payment of administrative fees.112 Fees may be due to the trustee or to professional advisors (lawyers, investment managers, and accountants) hired to assist with the estate’s management and may generally be paid from the estate if “reasonable.”113 In many situations, no party to the estate’s administration has an incentive to contest these fees.114 Perhaps as a result, bankruptcy law holds that the court has an independent duty to examine the fees, even in the absence of a specific challenge.115 In some respects, the dynamic surrounding the approval of such fees resembles the dynamic triggered by a proposed settlement of a class action and raises similar concerns.116

3. Contract and Plan Approval

During the course of bankruptcy proceedings, courts grant formal approval to a variety of business decisions by debtors-in-possession that are agreed to in advance by interested parties.117 For example, the parties may wish to adopt a pre-petition contract that has been profitable for the debtor and the bankruptcy estate.118 In such a situation, the federal bankruptcy code requires the court to approve the contract before it can be given legal effect.119 In addition, court approval of the debtor’s reorganization plan requires satisfaction of a laundry list of conditions.120 The court must hold a hearing on the plan’s confirmation and take evidence and make findings on each item, regardless of whether the item has “been placed in issue by the parties.”121

D. Government Investigations

In a variety of situations, the government must secure the approval of the federal judiciary before completing one or more phases of its investigatory process, such as conducting a search or seizure or issuing a subpoena. We summarize these proceedings in this section, recognizing that the rule of prior judicial approval does not apply to warrants and subpoenas issued under the aegis of grand jury proceedings (which have themselves been described as operating on an inquisitorial, rather than an adversarial, model).122

1. Warrant Applications

The Fourth Amendment assumes that courts and magistrates will conduct ex parte proceedings in the course of evaluating arrest and search warrants. The well-thumbed terms of the Amendment prohibit “unreasonable searches and seizures” and further declare that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.”123 Although scholars debate the meaning of the Warrant Clause and its connection to the ban on unreasonable searches,124 and although the Court has tugged and pulled at the Clause over time,125 key features seem relatively clear for our purposes. First, jurisprudence regarding the Warrant Clause contemplates the submission of an application to a “neutral and detached magistrate,” typically in an ex parte proceeding in which a government officer offers sworn testimony in support of the proposed warrant.126 Second, the issuance of a warrant had genuine legal consequences at common law, in that a lawful warrant immunized an officer who stayed within its bounds and the bounds of the law from subsequent civil liability.127

In the early Republic, representatives of all three branches of government appear to have presumed that warrant applications were proper in Article III courts, as when Congress authorized “any court of the United States” to hear warrant proceedings to enforce Alexander Hamilton’s 1791 federal excise tax on distilled spirits, which for obvious reasons did not provide for advance notice to the warrant’s target.128 Consider also the affair of Captain Barré, a French sailor who apparently found life in the United States preferable to the vagaries of the French Revolution.129 Under a treaty with France, the United States had agreed to arrest deserters from French vessels and deliver them to the French consul for return to their country.130 The French consul filed papers before Judge John Laurance in the United States District Court for the District of New York, seeking a warrant for Barré’s arrest following his desertion from a French ship.131 Although the evidence tended to establish that Barré had in fact deserted, Judge Laurance refused to issue an arrest warrant until the consul produced evidence of Barré’s enlistment on the ship’s register or roll (as apparently contemplated in the language of the treaty).132 The consul, lacking the specific proof demanded, sought help from the executive branch, which filed a petition for a writ of mandamus to compel Judge Laurance to issue the warrant.133

In a unanimous decision, the Supreme Court refused to issue the requested writ.134 Reasoning that Judge Laurance had acted in a “judicial capacity,” the Court said that it lacked power by way of mandamus to compel the judge to decide “according to the dictates of any judgment, but his own.”135 No one involved in the affair questioned the power of either the district court or the Supreme Court to proceed on an ex parte basis.136

2. FISA Warrants

Warrant proceedings remain a commonplace feature of federal judicial practice today. To be sure, much of the workaday review of applications for search and arrest warrants now falls to federal magistrates rather than to Article III judges.137 But Article III courts continue to assess exparte warrant applications in other areas. In the much-discussed context of national security, Article III foreign intelligence surveillance courts consider ex parte applications for warrants authorizing the government to conduct certain kinds of foreign surveillance.138 Created by FISA, the Foreign Intelligence Surveillance Court (often called the FISC) and the Foreign Intelligence Surveillance Court of Review employ judges from the Article III judiciary who have been designated by the Chief Justice of the United States to serve for specified terms.139 As in the case of warrant proceedings associated with the 1791 excise tax, FISA makes no provision for notice to the targets of the application and provides them with no opportunity to contest the showing made in support of the warrant. The government presents its case for surveillance in a closed-door, ex parte proceeding.140 In the event the FISC rejects the warrant application, FISA permits the government to appeal on an ex parte basis without joining an adverse party.141

Both the ex parte proceedings before FISA courts and the ex parte trademark seizure proceedings before federal district courts described in Part I.B.2 have been criticized for failing to satisfy the adverse-party requirement of Article III. One prominent early critic of the FISC, Laurence Silberman, later a judge on the D.C. Circuit, argued to Congress that the secret, non-adversarial character of its proceedings is inconsistent with Article III’s case-or-controversy requirement.142 And a district court, ruling before the practice was codified in 1984, held that ex parte trademark seizure applications suffered from the same defect.143 As we shall see in Part II, some jurists have relied on the possibility of post-warrant litigation in arguing that ex parte warrant proceedings satisfy the adverse-party requirement; depending on the circumstances, the party seeking the warrant might institute criminal proceedings against the target or the target might seek civil damages in tort.

3. Administrative Subpoenas

On occasion, federal courts serve as adjuncts to enforce discovery occurring in non-Article III tribunals or initiated in the course of administrative investigations. The organic statutes of many administrative agencies include provisions authorizing the agencies to invoke the subpoena power of the federal courts in connection with their efforts to compel the production of evidence and testimony by regulated parties.144 In 1887, Supreme Court Justice Field, riding circuit, held in In re Pacific Railway Commission that federal courts have no power to play this adjunct role.145 For Justice Field, the business of issuing a subpoena was a distinctly judicial function to be undertaken by the federal courts only in service of proceedings before the courts themselves.146 Administrative and legislative investigations were to be conducted without the aid of federal courts,147 in keeping with Justice Field’s belief that the federal courts were barred from acting as administrative assistants to coordinate departments.148 Ultimately, however, the Supreme Court rejected Justice Field’s view and upheld the federal courts’ role in issuing and enforcing subpoenas to further an agency’s investigation.149

4. Immunized Testimony

When a witness claims her Fifth Amendment privilege against self-incrimination, she triggers a mechanism that allows the government to grant her immunity and compel her to testify.150 Building on an approach first adopted in 1954 to regulate immunized testimony in the national security arena,151 Congress in 1970 created a three-step mechanism in which the witness claims the privilege, the prosecutor or other government attorney procures from higher-ups in Washington, D.C., a statement as to the importance of the testimony, and the federal district court then enters an order granting the requested immunity.152 In many instances, the parties do not disagree: the witness and the government both prefer that the grant of immunity be extended, and no one opposes the result.153 Therefore, a number of commentators once questioned the constitutionality of the judicial role in such proceedings, arguing that the absence of any case or controversy deprived courts of the power to issue the immunity orders.154In Ullmann v. United States, the Supreme Court rejected the claim that no case or controversy existed.155 Although the decision triggered a spirited dissent, no Justices questioned the majority’s conclusion as to the power of the federal courts to pass on an uncontested application for the grant of immunity.156

E. Prisoner Litigation

Prisoners often contest the fact or duration of their imprisonment, the conditions in which they have been confined, or, in death penalty cases, the manner in which their execution will be conducted. Both the nature of these challenges and procedural hurdles enacted by Congress to regulate them frequently give rise to ex parteproceedings in the federal courts. The familiar petition for a writ of habeas corpus, for example, displays some non-contentious features.157 Although the prisoner obviously has an interest adverse to the interest of the custodian detaining him, petitions for habeas corpus begin in an ex partemanner, and a court hearing the petition may reject it even before demanding that the custodian file a return to the writ specifying the cause of confinement.158 Similarly, the Prison Litigation Reform Act of 1995159 requires the federal district court to screen a complaint in a civil action in which a prisoner plaintiff is proceeding in forma pauperis and to dismiss any claim that is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.160 Still another example is the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),161 which provides that a habeas petitioner seeking to appeal from the district court’s denial of habeas relief must first obtain a certificate of appealability (COA) from a “circuit justice or judge” but does not require the return of an adverse party.162

Despite the initial absence of an adverse party in all such proceedings, federal courts are entitled to hear ex parte habeas applications as a prelude to the determination of the merits.163 On appeal, however, matters grow more complex.164 In Hohn v. United States, the petitioner sought a COA as a prelude to pursuing review of his conviction for use of a firearm in violation of federal law.165 When the application was denied, he sought review in the Supreme Court.166 Invoking the habeas cases and other examples, the Court ruled that his ex parte application for a COA was a “case” in the court of appeals within the meaning of its statutory grant of certiorari jurisdiction.167

Justice Scalia wrote a vigorous dissent, anticipating in certain respects his dissent in Windsor. Justice Scalia viewed the application for a COA as a threshold proceeding, separate from the dispute on the merits as to the propriety of habeas relief, and he evaluated its justiciability by seeking elements of adverse-party litigation:

An application for a COA, standing alone, does not have the requisite qualities of a legal “case” under any known definition. It does not assert a grievance against anyone, does not seek remedy or redress for any legal injury, and does not even require a “party” on the other side. It is nothing more than a request for permission to seek review.168

For Justice Scalia, the COA did not seek to “remedy” any harm; instead, it operated only as a “threshold procedural requirement that a petitioner must meet in order to carry his § 2255 suit to the appellate stage.”169 As a result, the application for a COA did not constitute a “case” in the court of appeals within the meaning of the provision for certiorari review.170

The Court’s intriguing response to Justice Scalia distinguished administrative work from judicial work. Citing United States v. Ferreira and Gordon v. United States, the Court acknowledged that it had previously refused to exercise appellate jurisdiction over decisions of lower courts that it viewed as administrative or legislative, rather than judicial, in character.171 But petitions for COAs were different:

Decisions regarding applications for certificates of appealability, in contrast, are judicial in nature. It is typical for both parties to enter appearances and to submit briefs at appropriate times and for the court of appeals to enter a judgment and to issue a mandate at the end of the proceedings, as happened here.172

The Court evaluated the judicial quality of COA applications in part by identifying characteristics that they share with adverse-party proceedings, such as the appearance of opposing parties and the submission of adversarial briefing. Importantly, the Court also focused in part on the extent to which COA applications call upon the court of appeals to act within the usual forms of judicial proceedings, such as by entering a judgment and issuing a mandate.173

F. Public and Private Dispute Resolution

1. Default Judgments

Ex parte proceedings also occur in the context of the judicial resolution of disputes between adverse parties. In perhaps the most familiar example, federal courts have the power, based on longstanding practice before courts of law and equity, to enter default judgments on an ex parte basis if satisfied that the defendant has been duly served with process and that the plaintiff has a prima facie right to recover.174 This practice has been codified in Rule 55 of the Federal Rules of Civil Procedure.175 Rule 55 imposes some procedural safeguards, requires the district court to exercise broad inquisitorial powers to investigate the facts that bear on the proposed judgment,176 and prohibits the court from entering the judgment unless the claim has been established through the submission of “evidence that satisfies the court.”177 But the rule does not condition the court’s power to issue a judgment on party opposition.

2. Uncontested Equity Receiverships

In the latter part of the nineteenth century, with no federal bankruptcy law in place until 1898, railroads and their creditors often turned to the equity receivership to restructure their affairs.178 In theory, the receivership was designed to protect the interests of creditors who could not otherwise enforce and collect their debts.179 In practice, the railroads themselves often welcomed the initiation of a receivership to secure the stay of litigation triggered by such a proceeding and to secure an orderly administration and restructuring of their debts.180

In one such proceeding, intervening parties contested the power of the federal court to entertain “friendly” receiverships.181 The Supreme Court found no violation of the adverse-party requirement and upheld the friendly receivership, because the party initiating the receivership had an unsatisfied demand against the railroad that was neither denied nor paid.182 That failure to pay, the Court held, was sufficient to ground the federal trial court’s jurisdiction.183

3. Consent Decrees

The Supreme Court also has found that the lower federal courts have the power to enter consent decrees.184 Typically, consent decrees represent the negotiated resolution of a dispute between adverse parties. Unlike purely private settlements, however, the parties to a consent decree condition their agreement on the willingness of the district court to enter the decree as part of their settlement. The decree operates like an injunction. It specifies what the defendant can and cannot do, and it often provides the district court with continuing authority to oversee compliance with its terms, punishing or threatening with contempt those who fail to comply with the decree.185 Although scholars have questioned the propriety of consent decrees under Article III, reasoning that the parties’ agreement as to the scope of relief lacks necessary adverseness,186 the Court’s sanctioning of consent decrees remains undisturbed.187

4. Guilty Pleas

Government enforcement proceedings often involve federal courts in the approval of a pre-negotiated settlement between the government and the enforcement target. Consent decrees are one example of such involvement. Plea agreements, which arose some 150 years ago as a capitulation to the demands placed on criminal dockets by mass society, are another.188 Critics identify flaws with the plea-bargaining system,189 but most doubt that the criminal justice system can function in its absence.190 Plea bargaining represents, in the words of federal judge Gerard Lynch, an “informal, administrative, inquisitorial process of adjudication.”191 In the typical case, the prosecutor and the defendant have agreed in advance on the sentence or its parameters in exchange for the defendant’s agreement to plead guilty to a particular offense.192 Needless to say, most guilty pleas do not occasion any adversary presentation to the court; both the prosecutor and the defense seek substantially the same disposition. But the agreement alone does not suffice to ensure the effectiveness of the plea bargain; the court must go along.193 Thus, the agreement will not be effective unless the district court first conducts a colloquy with the defendant to ensure that the plea and associated waiver of constitutional rights were knowing and voluntary, enters a judgment of conviction on the basis of the plea, and agrees to impose a sentence consistent with the plea agreement and the sentencing guidelines.194

5. Crime Victims’ Rights

Under the Crime Victims’ Rights Act, victims of federal crimes are afforded certain rights during criminal proceedings and may assert or enforce those rights through non-contentious proceedings.195 The statute declares that a crime victim or his representative may assert his rights by motion to the district court and further provides that, upon the denial of such motion, the victim may petition for a writ of mandamus in the court of appeals.196 The statute does not call for the person claiming to be a victim to name an opposing party in the motion, and although the victim’s status or the extent of the rights to which he is entitled might be contested by a target of the criminal proceedings or even the government,197 the statute does not predicate the judicial role on the existence of a controversy.

6. Class-Action Settlements

Under Rule 23(e) of the Federal Rules of Civil Procedure, the district court must oversee and approve the terms of the settlement of any certified class action.198 Settlement approval protocols have grown increasingly elaborate, as courts have come to recognize the threat that an inadequate settlement can pose to the interests of absentees.199 In addition to the judicial role in approving the settlement of certified class actions, courts sometimes agree to entertain what have come to be known as “settlement class actions,” disputes that were resolved by party agreement before any litigation had been instigated.200 When the parties agree, they may simultaneously file a complaint and a proposed settlement, inviting the court to approve a resolution of the claims on terms upon which they have previously agreed.201 Such settlement class actions pose well-known threats of collusion and self-dealing, frequently advancing “only the interests of plaintiffs’ attorneys, not those of the class members.”202

Apart from the threat to the due process rights of individual litigants, such settlement class actions have been described as violating Article III’s adverse-party requirement.203 Redish and Kastanek draw a sharp line between pre-certification agreements in such settlement class actions and more “traditional” post-certification settlements.204 They defend the judicial role in post-certification settlements on the ground that the federal courts enjoy ancillary power to dispose of a whole case following a settlement that renders the claims in the case non-justiciable.205 However, they condemn settlement class actions because the parties commence proceedings only to seek judicial approval of a pre-arranged agreement and therefore have no adverse interests giving rise to a justiciable controversy.206

7. Letters Rogatory

Federal courts often play an ex parte role when parties to a foreign proceeding seek discovery of facts in the United States. Under longstanding international practice, parties to litigation in one country can apply through diplomatic channels for “letters rogatory” ordering the collection of evidence in another country.207 Today, many such evidentiary requests are handled through the Hague Evidence Convention, which the United States joined as an original signatory.208 The Convention directs such requests to a country’s designated “Central Authority” for submission to the proper court.209 The application to a court of the United States for letters rogatory typically proceeds on an ex parte basis and may or may not lead to litigation, depending on the target’s response to the discovery request.210 If the district court agrees with the evidentiary request, it will typically appoint a commissioner to take the deposition or collect the evidence.211 While the target’s opposition to the discovery in any particular case can certainly create a measure of adverseness, many ex parte applications for letters rogatory proceed without any contest.212

II. scholarly reactions to ex parte and non-contentious proceedings

Existing scholarship on the adverse-party requirement has yet to confront the widespread appearance of ex parte and non-contentious proceedings on the dockets of the federal courts. Nor has it come to grips with the consistent line of Supreme Court decisions upholding such assignments. Of those few commentators who have encountered an instance of non-contentious practice and have identified a potential justiciability problem with the practice, some simply have denied the legitimacy of the exception, viewing it as a violation of the adverse-party or case-or-controversy requirements;213 others have dismissed the practice as an isolated departure or one that lies beyond the scope of their specific project.214 We consider arguments against the legitimacy of non-contentious proceedings in later sections of this Article. In this Part, we critically evaluate prior attempts to fit these proceedings within the judicial power as it currently is understood.

A. Isolated Departures and Historical Aberrations

Scholarly treatment of ex parteproceedings often tends to occur in the context of an encounter with a single non-contentious practice—for example, bankruptcy or naturalization proceedings.215 Perhaps as a result, a common response has been to treat the encounter as an isolated and insignificant departure from the courts’ otherwise broad-based commitment to adverse-party proceedings.216 Apart from the fact that such an approach is unsatisfying from a doctrinal perspective, the rather lengthy catalog of ex parte matters in Part I makes the argument from isolated aberration difficult to sustain. These matters are neither isolated nor considered aberrations in the unbroken line of cases upholding them. The denial practiced by scholars does little to explain the existence of non-contentious proceedings.

Another common response to encounters with non-contentious proceedings has been to treat the specific practice as a vestige of an earlier day—a vestige obviously inconsistent with the adverse-party rule but perhaps too well established to overthrow.217 One could argue, for instance, that the federal courts’ role in naturalization proceedings dates from early in the nation’s history and depends for its constitutionality on its pedigree rather than on its compliance with the demands of Article III.218 The instinct that underlies this strategy may be sound: an early practice, consistently followed, can claim respect as liquidating or fixing the meaning of Article III. For example, the Court cited historical pedigree in upholding qui tam relator actions, despite the fact that a relator prosecuting the claim on the government’s behalf was said to lack standing in his own right.219

With respect to non-contentious proceedings, however, the practices “grandfathered” occupy such a broad swath of judicial business that they raise a fundamental question about the soundness of the adverse-party requirement. If the Constitution really does embody such a requirement, then why were the Framers and others in the early Republic apparently so untroubled by the widespread exercise of jurisdiction in non-contentious matters in their federal courts, and why did the First Congress assign, apparently without concern, such matters to the courts’ dockets? Also, how can grandfathering explain the consistent appearance of non-contentious business on federal court dockets in new manifestations today, such as the relatively recent creation of the FISA court and the provision for trademark seizure proceedings? Resolving these questions requires more than indulgence; it requires a coherent, possibly separate, classification for non-contentious proceedings and perhaps a fundamental rethinking of prevailing views of federal judicial power.

B. Tutun v. United States and the Possible Adversary Theory

Some scholars attempt to explain non-contentious proceedings by drawing on what has come to be known as the “possible adversary” theory supposedly outlined in Tutun v. United States.220 Under the possible adversary theory, the prospect of eventual adverse-party litigation in the future can justify the exercise of jurisdiction without an adverse party in the present.221 In Tutun, two circuit courts certified to the Supreme Court the question of whether they could exercise jurisdiction over appeals of district court denials of naturalization petitions.222 Justice Brandeis, writing for the Court, held that naturalization proceedings are proper exercises of the judicial power despite the lack of concrete adverseness until (and unless) naturalization is denied and the question goes up on appeal. In a stray statement from the decision, Justice Brandeis hypothesized that one ground for upholding such proceedings was that the federal government remained a potentially adverse party that might intervene to contest the petition if it so chose.223

One finds the idea of a possible adversary expressed in a variety of contexts, as scholars have deployed this theory to address a surprisingly wide range of justiciability problems.224 Some scholars have invoked the possible adversary theory to explain the many uncontested matters that find their way onto the dockets of the bankruptcy courts.225 Others have invoked it to explain the willingness of federal courts to entertain ex parte warrant applications, arguing that the warrant issues in the shadow of a criminal investigation that may lead to criminal charges in which the target of the warrant can presumably test its legality.226 Running with this notion, some scholars have explored the relevance of the possible adversary theory to ex parte FISA warrant practice.227 (FISA warrants rarely lead to criminal proceedings, however, making “razor thin” the fiction that their issuance may result in an adversary proceeding.)228 Others suggest that Congress should address the absence of any possible adversary by authorizing an after-the-fact suit for damages in which targets of certain FISA warrants could contest their legality.229 Indeed, a similar justification for the exercise of jurisdiction could be offered in prize cases heard in admiralty; the seized ship’s owner, captain, or crew could potentially (and sometimes did) appear to contest condemnation of the prize.230 One might also use the possible adversary theory to explain federal court jurisdiction over remission petitions, trademark seizure orders, and the issuance of administrative subpoenas, among others.231

The possible adversary theory has some appeal in that it offers a means of reconciling the adverse-party requirement with the reality of non-contentious practice, but it cannot bear the weight that scholars have placed upon it. To begin with, whatever the theory’s appeal in the isolated context of certain ex parteproceedings, it is difficult to square with other elements of justiciability doctrine. Under bedrock justiciability principles, only ripe disputes between concretely interested parties can invoke the machinery of the federal judiciary. Indeed, in one of the Court’s more recent standing decisions, Clapper v. Amnesty International USA, the Court reiterated that “threatened injury must be certainly impending to constitute injury in fact” and that “[a]llegations of possible future injury” will not suffice.232 Ripeness decisions point in the same direction, rejecting the idea that the possibility of a future disagreement can provide a sufficient basis for the invocation of the judicial power.233 If these proclamations hold, then hypothetical future adverseness cannot solve an actual justiciability problem in a pending case any more than the prospect of hypothetical future injury can confer standing and ripeness in a case where they are lacking.234 This is particularly true where the possibility of future appearance by an adverse party is, as in FISA proceedings, little more than speculative.235

Moreover, the prospect of a future adverse party does little to assuage the concerns that underlie the adverse-party requirement. Hypothetical adverseness does not improve the quality of the record presented to the court, and it does not allow for a balanced presentation of factual or legal propositions; nor does it prevent a court from deciding issues that could compromise the rights of third parties or from interfering with the prerogatives of the political branches of the government.236 And where an adverse party does not appear (a frequent outcome, as we have seen),237 these problems will persist. It thus is difficult to perceive how the hypothecation of a possible future adversary can offer a plausible justification for non-contentious federal court proceedings.

Apart from questioning the coherence of the possible adversary theory, we have serious doubts that Tutun actually endorsed such a theory. In hearing Tutun, the Court resolved a division in the lower courts as to whether a district court order adjudicating a petition of naturalization was subject to appellate review.238 The relevant statute empowered the federal appellate courts to hear appeals from final decisions in “all cases.”239 Rather than limit its analysis to the narrow question of the proper interpretation of that phrase, Justice Brandeis’s opinion tackled the more fundamental issue of Article III authority.240 In doing so, Justice Brandeis adverted to the fact that the congressional practice of assigning naturalization proceedings to the federal courts had begun in the 1790s and had never been questioned.241 What’s more, Justice Brandeis noted, “[i]f the proceeding were not a case or controversy within the meaning of Art[icle] III, § 2, this delegation of power upon the courts would have been invalid.”242 The accompanying citation of authority suggests that Justice Brandeis saw no problem with the practice in question under the finality requirement of Hayburn’s Case or under the non-advisory rule stated in The Correspondence of the Justices243and applied in Muskrat v. United States.244 Indeed, he recited two possible obstacles to finality—the prospect of a second petition following the denial of the first and the prospect of a suit by the government to cancel a certificate of citizenship—but concluded that an order granting or denying a petition for naturalization is “clearly a final decision.”245

Next, Justice Brandeis considered arguments that the practice of naturalization was essentially an administrative action and thus unfit for judicial cognizance. In evaluating the nature of the proceeding, Justice Brandeis explained that citizenship under the naturalization law was no mere privilege:

The applicant for citizenship, like other suitors who institute proceedings in a court of justice to secure the determination of an asserted right, must allege in his petition the fulfillment of all conditions upon the existence of which the alleged right is made dependent; and he must establish these allegations by competent evidence to the satisfaction of the court. In passing upon the application the court exercises judicial judgment. It does not confer or withhold a favor.246

For Justice Brandeis, then, the key to the case-like quality of the proceeding lay in the asserted claim of right and the exercise of judicial judgment in determining if the requisite showing had been made—a formulation that, we later will see, has important implications for understanding other instances of non-contentious practice.247 Instead of discussing the need for adversary presentation of issues, Justice Brandeis emphasized the obligations of the court: to conduct open proceedings, to examine the petitioner and witnesses under oath, and to enter a judgment. Plainly, then, he expected the court to perform the searching inquiry that we associate with inquisitorial proceedings.248

Justice Brandeis reasoned that Congress has broad discretion in structuring the assertion of administrative claims against the United States. According to the Justice, the United States may “create rights in individuals against itself and provide only an administrative remedy.”249 Or it may provide a legal (that is, judicial) remedy, but require that individuals first exhaust administrative remedies.250 Or it may create both administrative and legal remedies and give the individual a choice of which to pursue.251 Or it may “provide only a remedy” in federal court.252 Justice Brandeis held that when Congress chooses the last of these paths by creating a regular mode of procedure, and when the individual invokes the established procedure in pursuit of a claim of right, “there arises a case within the meaning of the Constitution.”253 A petition for naturalization, Justice Brandeis concluded, “is clearly a proceeding of that character.”254

It seems odd that the animating feature of Justice Brandeis’s opinion—that when Congress so provides, ex parte administrative claims qualify as cases within the meaning of Article III—has largely disappeared from view. That disappearance is all the more startling when one considers that Justice Brandeis was among the leading architects of the Court’s justiciability doctrines and had insisted in other contexts on the importance of adverse parties.255 One might suppose that Justice Brandeis’s reputation as an adverse-party hawk would lend greater authority to his acceptance in Tutun of ex parte proceedings. But this has not been the case. Instead, scholars have tended to pigeonhole Tutun as a decision that stands for a proposition less sweeping and potentially unsettling than the one Brandeis articulated. As we have noted, some point to the fact that Justice Brandeis also invoked the lessons of history, adverting to the longstanding practice of naturalizing citizens as one that had never been questioned.256 And many, as we have seen, treat Tutun as a potential adversary case.

But that reading is not persuasive. Although the potential adversary language had appeared earlier in Muskrat, Justice Brandeis did not suggest that Muskrat controlled, and he did not suggest that his characterization of naturalization proceedings as “cases” turned on the possibility that an opponent might appear. Nor did he explain how much potential adverseness was enough or indicate that the actual appearance of the United States was necessary to bring the matter within the judicial power.257 Justice Brandeis also did not contend that the congressional creation of a potential role for the United States was essential to make Tutun’s claim a case; after all, the history of naturalization to which Justice Brandeis referred did not feature an adversary, potential or otherwise. To be sure, beginning in 1906, applications for citizenship were to undergo relatively searching review.258 In addition to the use of hearings at which the court took testimony from the applicant and witnesses,259 the government could contest naturalization, both before and after the issuance of the certificate.260 But before 1906, the various congressional enactments defining the role of courts in naturalization never provided for intervention by the United States or any other party to contest the petitioner’s application.261 The most reasonable conclusion, therefore, is the one recognized by Henry Monaghan: that the reference to the government as a possible adverse party was not central to the Court’s holding that ex parte naturalization proceedings are cases within Article III.262

Even if one were to ascribe a possible adversary holding to Tutun, that construct has done no work in subsequent cases. Although the Court has issued a series of decisions upholding ex parte proceedings, it has never cited the “possible adverse party” theory of Tutun in doing so. Rather, the Court has emphasized that the proceeding under consideration calls for the exercise of judicial judgment in resolving an issue of law or fact. That was the message in Ullmann, upholding the judicial power to confirm the propriety of an uncontested grant of immunity.263 It was also the message in Hohn, which treated ex parte petitions for certificates of appealability as “judicial in nature,”264 notwithstanding the dissent’s complaint that these proceedings lacked the qualities of adverseness associated with cases.265 Although the Court acknowledged that adversary disputes over COAs were commonplace, it did not invoke the possibility of such a dispute as support for its holding.266

For all of these reasons, it does not make sense to try to explain away ex parte proceedings through the possible adversary theory. Case law provides little support for such a construct, and the use of hypothetical adversary parties does not fit well with the Court’s general approach to justiciability problems. In any case, such an approach would invite line-drawing problems as the courts considered how much potential adverseness was required in any particular case. FISA warrant proceedings, in particular, would seem vulnerable to a rule that required more than the slightest possibility that future party opponents would emerge (or learn that they were the subject of a FISA warrant). Better, we think, to address the problem forthrightly and to develop a coherent framework for the presence of ex parteand other proceedings lacking an adverse party. We offer such a framework below.

III. contentious and non-contentious jurisdiction

Having described widespread ex parte practices in Part I, and having shown in Part II that existing adverse-party scholarship does not adequately explain their appearance on federal dockets, we offer a solution. We believe that the explanation for non-contentious federal proceedings lies outside the adversary model, in the many non-contentious forms of action that Britain, colonial America, and the United States borrowed from the Roman and civil law. Below, we demonstrate that the failure of the early federal courts to curb non-contentious proceedings resulted not from oversight or inadvertence but from an understanding shared by the Framers and the lawyers of the Founding generation that the “judicial power” conferred by Article III consists of two distinct dimensions: contentious jurisdiction and non-contentious jurisdiction. Moreover, although non-contentious jurisdiction is not generally a part of the vocabulary of a modern American judiciary less well-acquainted with the civil law, we show that this form of jurisdiction can explain the willingness of federal courts to uphold, in appropriate situations, the exercise of judicial power over ex parteproceedings in the face of challenges based on modern justiciability doctrines.

Such a dual-power solution has the virtue of preserving much of the Court’s adverse-party learning for application to contentious disputes over matters of federal law, state law, and federal constitutional law in particular. At the same time, the construct of non-contentious jurisdiction can help rationalize, clarify, and evaluate the manner in which federal courts manage the administration of claims and other ex parte matters. In this Part, we describe the historical background of non-contentious jurisdiction, from its origins in Roman law, to its reception in Europe, to its manifestations in legal proceedings and materials at the time of the Framing. Our findings lead us to reevaluate the adverse-party requirement and to offer a novel account of the case-controversy distinction employed by Article III.

A. The Historical Pedigree of Non-Contentious Jurisdiction

1. Roman Law

Although it did not leave much of an impression on the common law of England, non-contentious jurisdiction has a rich grounding in history. Its origins lie in the law of ancient Rome, which appears to have divided judicial actions into two forms: iurisdictio contentiosa and iurisdictio voluntaria, or contentious and “voluntary” jurisdiction.267 Contentious jurisdiction was “[j]urisdiction in cases involving a legal controversy between the parties to [a] trial” designed to resolve a conflict of legal or personal interests.268 Voluntary jurisdiction, by contrast, was “the intervention of a magistrate in matters in which there [was] no quarrel between the parties and the fictitious trial serve[d] only as a way of performing certain legal acts or transactions.”269

Voluntary proceedings included in iure cessio (the conveyance of property in the form of a feigned case, which resulted in a consent judgment sanctioning the conveyance), emancipatio (the emancipation of minors), adoptio (adoption), and manumissio (the manumission of slaves), as well as the “cooperation of officials in guardianship matters and legal acts for the validity of which a permission of the competent authority is required.”270 The court’s function in such matters was limited to sanctioning, ratifying, legitimizing, or collaborating in the creation of a legal act or relationship that was accepted by the parties in advance and that did not prejudice the rights of third parties not before the court. As such, whenever it appeared that an agreement or alignment of the parties’ interests was not present or had disappeared, the proceedings would alter and become contentious in character.271

As this brief summary reveals, matters within iurisdictio voluntaria arose not from a concrete dispute of law or fact among the parties, but from the desire of those parties to secure a conclusive legal recognition of their status or to obtain formal approval of “certain legal acts or transactions.”272 Indeed, many of the invocations of voluntary jurisdiction described above were similar to petitions for naturalization in federal courts in that the law provided a procedure by which parties could alter their legal status through ex parte applications for judicial action.273 For example, emancipatio, or “[t]he voluntary release of a son or daughter from paternal power by the father,” could, under the law of Justinian, be “performed by a simple declaration before a competent official.274

Other invocations of non-contentious jurisdiction took the form of feigned controversies. Notably, in jure cessio (“a surrender in court”) would secure a change in property ownership as follows:

[In jure cessio] was a collusive or fictitious suit whereby the person to whom the property right was to be conveyed claimed in open court to be the owner. Thereupon, the magistrate asked the other party, the present owner, whether he also claimed it. Upon the denial or silence of such other party, the magistrate gave judgment (addicit) in favor of the claimant.275

Parties relied upon proceedings in jure cessio “for a number of legal transactions,” such as the transfer of property, the formalization of adoption and emancipation, and “the creation of servitudes.”276

According to Fernandez de Bujan, voluntary jurisdiction in Roman law occupied an “autonomous” zone on the border between the judicial and administrative powers and, as a result, has posed challenges for historians attempting to classify or describe its precise nature.277 Nevertheless, and despite the fact that it is in some respects difficult to square with our own conceptions of judicial activity, voluntary jurisdiction did comport with the Roman conception of jurisdiction as the execution of “a public function upon private juridical interests and relationships.”278 The judge or magistrate was not a “mere automaton,” but instead tested the factual basis for the petition, required testimony on the record before granting judicial sanction to the petition, and exercised “control over the legality of the acts of the appearing party or parties.”279

2. The European Reception of Non-Contentious Jurisdiction

Non-contentious jurisdiction further developed as Roman law was received into the civil law of continental Europe and Scotland.280 Thomas Wood’s influential eighteenth-century treatise A New Institute of the Imperial or Civil Law, for example,divides “causes” into “Jurisdictio Contentiosa, or Judicial, which is exercised upon Persons whether they consent to it or not,” and “Voluntaria, which may be used at all times without any manner of contradiction; as Emancipation, Adoption, Manumission; and in several other legal Acts granted by the Judge upon request, and by consent of all Parties.”281 Voluntary jurisdiction also appeared in Scotland, and the distinction between contentious and non-contentious jurisdiction was described in the late eighteenth century by Sir John Erskine, author of a treatise that was well-known in Britain and in America.282 Drafters of the German civil code in the sixteenth century similarly incorporated elements of non-contentious jurisdiction,283 although German law did not perfectly map onto ancient forms.284

Non-contentious jurisdiction remains a feature of many continental judicial systems today. In France, the civil code defines voluntary jurisdiction, or juridiction gracieuse, to encompass both ex parte proceedings and feigned controversies. French law empowers the proper court to assert non-contentious jurisdiction “over all claims not involving an adversary and not contestable by a third party; and . . . over all claims in which the parties, not being in disagreement, are required by their status or the nature of the affair, to obtain a court decision.”285 Other countries have taken a less formal approach. Italian courts exercise the functional equivalent of non-contentious jurisdiction (giurisdizione volontaria) in the absence of any formal codification in the rule books.286

Non-contentious procedures vary somewhat from nation to nation. In Italy, non-contentious matters have been handled by a judge “in chambers,” rather than during the formal sitting of the court.287 In Germany, by contrast, much non-contentious jurisdiction has been assigned to the local or district courts.288 Non-contentious proceedings have a judicial quality; one treatise on German law explained that although a certain exercise of jurisdiction was non-contentious, it was “in no way ‘non-judicial.’”289 But the character of the proceeding reflects its non-contentious roots. Non-contentious jurisdiction requires the judge to play an active role in developing the factual record; the court cannot rely on an adverse party to help frame the issues. One German scholar characterized the judge in non-contentious matters as enjoying “a great deal of freedom” to “take any evidence.”290 An Italian scholar echoed that conclusion: non-contentious proceedings “are marked by the extensive inquisitorial powers bestowed upon the judge in charge of the case.”291 These powers ensure that the judge has “ample discretion as regards the evidence-taking phase of the procedure.”292

A broad range of matters has been assigned to non-contentious jurisdiction in Europe. Many countries, for example, provide for judicial oversight of probate matters in an effort to ensure proper resolution of potentially fraught issues of inheritance and succession.293 (As we will see, common-form probate proceedings in Anglo-American law derive from this form of non-contentious jurisdiction in European civil law countries.294) In addition, European civil-law countries often rely on non-contentious jurisdiction to oversee the appointment and supervision of guardians,295 and the formal registry of interests in real property.296 Finally, European countries have provided for the formal registration of contracts of suretyship and the acknowledgement of debts through non-contentious proceedings297 and have assigned certain matters of insolvency and bankruptcy to such a mode.298

Although defining the construct of non-contentious jurisdiction in its modern guise presents conceptual challenges,299 scholars agree that courts exercising non-contentious jurisdiction perform somewhat the same role as administrative officers or agencies. Thus, one scholar contrasted contentious matters with non-contentious matters, which he characterized as “prudential administration of justice, for the security of private legal interests.”300 Another scholar defined non-contentious jurisdiction as “a form of judicial intervention that borders on the field of tasks falling, as a rule, within the realm of executive power, that is, tasks that could (at least in principle) be performed by administrative bodies as well.301 Mauro Cappelletti and his co-authors report that the traditional definition is that voluntary jurisdiction involves the “public administration of private law by judicial organs.”302 Often, non-contentious proceedings seek a form of official recognition viewed as “necessary to create individual rights,”303 comparable in some respects to petitions for the recognition of patents, copyrights, and titles to public land.

The frequently ex parte character of non-contentious proceedings has led to predictable concern with the protection of the rights of third parties. European countries have dealt with third-party rights in a variety of ways. Most commonly, as in Italy, the courts simply deny preclusive effect to the decrees of tribunals exercising non-contentious jurisdiction, thereby limiting their potentially prejudicial effect.304 In Germany, the Federal Constitutional Court has found that individuals have a due process right to be informed about and to participate in any non-contentious proceedings that might affect their interests. The German Federal Constitutional Court also has held that parties to a non-contentious proceeding may seek the recusal of an interested or biased judge.305

3. Non-Contentious Jurisdiction in England and America

The situation in England and America was more complicated, if only because of the somewhat rockier reception the civil law encountered in those countries. The common-law courts of England resisted, and largely prevented, Roman and civil law from usurping the central place of the common law as the foundation of the English legal system,306 and the common law (eventually at least) was adopted as the primary source of law in much of the United States.307 Nevertheless, many English and American courts adopted civil-law practices, and many exercised non-contentious jurisdiction.308

Many of these non-contentious practices took place in courts bearing the stamp of continental and civil influence—such as courts of equity and the ecclesiastical and admiralty courts—but the practices actually predated the Norman Conquest and grew organically out of the common business of local courts well before the time of Blackstone.309 For example, the courts of Anglo-Saxon England and the county courts of medieval England conducted the voluntary transfer of land and the sanctioning of documents through judicial process.310 By witnessing these and other formal acts, such as marriages, the courts provided legal recognition and public legitimacy.311 Later, British ecclesiastical courts consciously exercised non-contentious jurisdiction in a wide variety of proceedings, including the probate of wills and the issuance of marriage licenses,312 and, as we already have noted, one of the chief functions of admiralty courts was the condemnation of prizes in what frequently were ex parteproceedings. Similarly, according to William Burdick, the non-contentious Roman procedure in jure cessio was “undoubtedly the inspiration of the collusive or fictitious suits in early English law known as fine and common recovery,” a cognizable action in English common-law courts.313

The Court of Chancery also possessed a non-contentious jurisdiction, which it exercised in such matters as the appointment of guardians for infants, and, as noted previously, in the creation of equitable receiverships.314 Much as an application for a receivership assumed the form of an often-fictional dispute,315 courts of equity predicated the appointment of a guardian for a minor upon a fictional suit over property held in the district.316 Justice Joseph Story reported on this development with some puzzlement, wondering why the fiction of a dispute was necessary to trigger a court’s equitable powers of appointment.317 It should come as no surprise, then, that many of these same non-contentious proceedings made their way to the American colonies and were employed in the equity, admiralty, and probate courts of the early United States.

Indeed, although many of their judges had little or no legal training or education,318 local colonial courts often exercised jurisdiction over both contentious and non-contentious matters, and some even performed purely executive or legislative functions, such as maintaining county buildings, conducting inquests, raising taxes, and planning highways.319 Many colonial courts were assigned quintessentially non-contentious tasks, such as recording land transfers and other instruments, conducting examinations for the admission of attorneys to the bar, and evaluating petitions for liquor licenses.320 Colonies and territories established orphans’ courts for the protection of the estates and welfare of orphans and invested courts with probate powers to administer estates.321 Still others were granted wide-ranging and non-specialized jurisdiction over common law as well as probate, admiralty, and equity cases, thereby assuming the role played by both the Court of Chancery and the ecclesiastical courts in England.322

Nevertheless, we do not make specific claims about the process by which the tradition of non-contentious jurisdiction made its way to the new world. In some respects, governmental systems lacking a sophisticated administrative apparatus, such as Anglo-Saxon England and the early colonial American settlements, would understandably use courts to exercise jurisdiction over non-contentious business regardless of whether that business was seen as grounded in the Roman tradition of voluntary jurisdiction.323 The sixteenth-century development of the administration of prize cases, for example, seems to have grown organically out of the need of the state to provide conclusive legal title to the captures taken by privateers acting under the state’s authority rather than out of regular disputes over such matters or as a direct outgrowth of Roman law.324

We believe that by incorporating non-contentious jurisdiction, Article III simply responds to the actual needs of the federal system to administer its law. For example, the decision of Congress to bring the judicial power to bear on naturalization petitions by assigning them to “courts of record” made functional sense. Open proceedings would ensure a searching judicial inquiry into the status of the applicant and could help to prevent the naturalization of those with suspiciously limited ties to the community.325 Such an assignment could also ensure the creation of a permanent and conclusive record of the alien’s admission to citizenship. A permanent record was of central importance in a world in which only citizens enjoyed the right to own land.326 In addition, the conclusive quality of judgments “of record” protected citizenship decisions from attack in subsequent disputes over title to property.327

This practical response to perceived needs provides the best account of how these non-contentious proceedings arrived on federal dockets and how they fit with the practice of federal courts today. Nonetheless, we do see an obvious link between European developments and the non-contentious practices catalogued in Part I of this Article. The Framers and others of the Founding generation were well versed in Roman political history,328 and many were close students of Roman and civil law329 and of the practices of the English admiralty, equity, and ecclesiastical courts.330 Civil law was in fact central to the education of the more sophisticated American lawyers, including such luminaries as Chief Justice John Marshall, Thomas Jefferson, and John Adams.331 In 1786, James Madison examined the practices of the Dutch admiralty courts as part of his pre-constitutional study of confederacies,332 and Alexander Hamilton and James Wilson, among others, were well familiar with principles of admiralty jurisdiction and practice.333 The courts of the colonies and the early Republic often, implicitly or explicitly, looked to the courts of England in developing processes and procedures, including the procedures employed in local courts, courts of equity, and probate and prize proceedings. Application of the civil law in appropriate cases was assumed at the Constitutional Convention,334 and the Process Act of 1789 prescribed that the forms and modes of proceedings of civil law would govern in cases of admiralty and equity jurisdiction.335 Later, as Thomas Lee has noted, Edmund Randolph reported to Congress that “a federal judge in the early Republic had to be not only ‘a master of the common law in all its divisions’ but also a ‘civilian.’”336 The judicial power with which federal courts were invested surely encompassed both the common-law and civil-law traditions.

Regardless of whether the Framers specifically contemplated a link between the judicial power they conferred on federal courts and the voluntary jurisdiction of Roman and civil law, we have little doubt that non-contentious jurisdiction was a regular feature of the judicial proceedings in equity, admiralty, and probate with which the Framers were familiar from everyday experience. In this cosmopolitan legal world, the decision of Congress to assign non-adverse proceedings to federal courts does not present much of a mystery. Indeed, the uncontroversial decision to include equity and admiralty “cases” in the federal constitutional catalog provides solid evidence that non-contentious jurisdiction was considered an acceptable dimension of the business of Article III courts.

B. The Adverse-Party Requirement Reconsidered

What, then, of the adverse-party requirement? After all, if the judicial power conferred by Article III includes a role for non-contentious jurisdiction (as history and practice tend to suggest), then the adverse-party requirement must be modified—or at least be rendered more malleable—to account for the exercise of that power. But if an inflexible adverse-party requirement is part of the irreducible core of Article III or of the Court’s justiciability doctrines, then one might argue that non-contentious jurisdiction simply cannot be considered part of the judicial power, and that the many departures from adverse-party proceedings in the federal reports are (at least from an originalist perspective) fundamentally impermissible. Below, we explain that the supposed roots of an inflexible adverse-party requirement stand on textually and historically infirm ground. Although adverseness has work to do in defining and circumscribing the judicial power in contentious proceedings, the imposition of an inflexible, across-the-board requirement does not fit with the text of Article III or the practice of federal courts in administering federal law. Indeed, we think non-contentious jurisdiction may help to explain some other enduring mysteries of federal jurisdiction, including why the Framers chose to use two terms, “cases” and “controversies,” to describe the work of the federal judiciary.

1. Cases, Controversies, and the Judicial Power

The well-known words of Article III extend the “judicial power” to “Cases” arising under the Constitution, laws, and treaties of the United States, and to “Controversies” between certain configurations of parties.337 Although the terms are not actually linked in the text, since the twentieth century the Supreme Court has frequently conjoined them in its discussions of justiciability, referring to a “case-or-controversy” requirement in a manner suggesting that the two terms are wholly synonymous.338 The case-or-controversy requirement has been invoked repeatedly by courts and scholars seeking a textual foundation for the adverse-party requirement, as Justice Scalia did in Windsor and Hohn.339 The most careful and comprehensive attempt to ground the adverse-party requirement in the text, structure, and history of Article III—that of Redish and Kastanek in their investigation of settlement class actions—places particular emphasis on the term “controversy,” arguing that the adverseness inherent in that term should be imputed to the definition of “case” as well.340 On this view, both terms imply the existence of opposing parties with adverse interests presenting their dispute for adjudication in a standard legal action.

From the perspective of modern lawyers steeped in the assumptions of the American adversary system and long accustomed to the Supreme Court’s conflation of “case” with “controversy,” the conclusion that a justiciable case requires the participation of an adverse party makes a fair amount of sense. Indeed, Redish and Kastanek have argued that the Court’s conjunction of the terms casts a “heavy burden” on those who propose to read the term “cases” as broader in scope than the term “controversies.”341 But the modern view must confront burdens of its own. To begin with, judicial opinions conflating cases with controversies are of relatively recent vintage,342 and it is by no means clear that such a reading was shared by the Framers or by the early Supreme Court.343 In fact, important early definitions of the term “cases” within the meaning of Article III provided by Chief Justice John Marshall and Justice Joseph Story do not refer to adverseness and do not assume the appearance of more than one party to the proceeding. Chief Justice Marshall and Justice Story were both familiar with the range of ex parte matters that had been assigned to the federal courts. Both Justices, moreover, upheld the exercise of judicial power in such matters.344

Against this background, it is striking that Chief Justice Marshall and Justice Story couched their canonical definitions of the term “case” in terms broad enough to encompass ex parte matters. Listen first to the familiar words of Chief Justice Marshall’s opinion in Osborn v. Bank of the United States:

This clause [extending jurisdiction to federal question “cases”] enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the constitution declares, that the judicial power shall extend to all cases arising under the constitution, laws, and treaties of the United States.345

Justice Story’s Commentaries on the Constitution adopts the same formulation: “A case, then, in the sense of this clause of the constitution, arises when some subject touching the constitution, laws, or treaties of the United States is submitted to the courts by a party who asserts his rights in the form prescribed by law.”346

The Marshall-Story account provides a straightforward basis for the exercise of jurisdiction over both contentious and non-contentious cases. Consider the typical contentious federal question claim, one in which a party demands a remedy from an opposing party for the claimed violation of a legal right.347 Such a claim for redress of violations would clearly qualify as an assertion of one’s rights within the Marshall-Story paradigm.348 Yet the Marshall-Story definitions would also encompass non-contentious federal question claims. The definitions require only the assertion of claims by a single “party” and say nothing about the joinder of an opposing party. In addition, the formulations require only the assertion of one’s “rights,” and thus encompass claims in the nature of ex parte applications for pension benefits, naturalized citizenship, and other legal entitlements, such as warrants, conferred by law. As both Chief Justice Marshall and Justice Story would have understood, one can certainly assert claims of right on an ex parte basis without seeking redress from an opposing party.349

The formulations provided by Chief Justice Marshall and Justice Story to some extent tracked civil-law definitions of the “causes” cognizable before a judicial tribunal. The term “case” in Article III bears an obvious linguistic similarity to the Latin term causa, or cause, and both terms cover much the same ground. Indeed, the Oxford Latin Dictionary defines “causa” to mean “judicial proceedings,” or a “legal case.”350 The definition of “cause” in an eighteenth-century English treatise anticipates Justices Marshall and Story:

A Cause (called in the Latine Causa) is defined (by Logicians) That, by whose Vertue or Efficacy, any thing is made to have a Being or Existence [i.e., causation] . . . The word Cause is Metaphorically used here [i.e., in a legal treatise], for the word Action: which (amongst those many Significations the Glossaries seem to put upon it) we shall only define to be the right of prosecuting or pursuing (in a Court of Judicature) whatsoever any one supposes, is properly his Due, &c.351

Like the Marshall-Story formulation, this definition of “cause” encompasses ex parte proceedings in which an individual “pursu[es]” in a court of judicature that which he supposes to be “properly his Due” and does not require the joinder of an adverse party.

Indeed, if one canvasses antebellum judicial decisions, one sees nothing like the modern use of the conjoined terms “cases or controversies” to suggest adverse-party restrictions on the work federal courts can perform. Our research suggests that the conjunction of terms did not appear until an 1887 circuit court opinion of Justice Stephen Field that refused to enforce a subpoena at the behest of the federal Pacific Railway Commission.352 Justice Field’s account of the term “cases” follows:

The judicial article of the [C]onstitution mentions cases and controversies. The term ‘controversies,’ if distinguishable at all from ‘cases,’ is so in that it is less comprehensive than the latter, and includes only suits of a civil nature. By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the constitution, laws, or treaties of the United States takes such form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication.353

Note the move here. Justice Field first suggests the broad similarity of the terms “cases” and “controversies.” Then, after restating and expanding the Marshall-Story definition, Justice Field makes the then-novel claim that the term “case” implies the features of a controversy; namely, the existence of present or possible adverse parties with competing contentions. In short, Justice Field used the idea of a controversy to transform the non-contentious Marshall-Story definition of a “case” into one that requires the existence of an adverse-party dispute. He perceived no such dispute in the matter before him; a federal commission was conducting an investigation for regulatory purposes and had not brought suit in federal court against the Pacific Railway.354

Justice Field may have recognized that he was breaking new ground and consequently may have labored to explain how other non-contentious applications differed from the administrative subpoenas under consideration.355Nevertheless, and perhaps because his efforts at distinguishing other non-contentious proceedings did not prove persuasive, his opposition to a federal judicial role in administrative subpoena enforcement did not take hold. The Court later ruled that applications for such subpoenas were proper subjects of judicial cognizance,356 and the federal courts today oversee the enforcement of administrative subpoenas without raising Article III doubts.357

Yet Justice Field’s reformulation of the Marshall-Story definition of a “case,” from one that contemplates ex parteapplications to one that requires adverse parties, has had great influence. Justice Field himself imported Pacific Railway’s case-controversy conjunction into Supreme Court jurisprudence in Smith v. Adams in 1889: “By those terms [cases and controversies] are intended the claims or contentions of litigants brought before the courts for adjudication by regular proceedings established for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs.”358 Later, in Muskrat, the Court recited the “present or possible adverse parties” idea from Pacific Railway in the course of rejecting what it perceived as an improper attempt to secure an advisory opinion.359 And by the middle of the twentieth century, the conflation of cases with controversies was complete.360

Perhaps needless to say, we think the Marshall-Story formulation better and more faithfully captures the idea of a “case” as used in Article III, and we propose that scholars and jurists disavow the Justice Field gloss. In any event, it now seems clear that the case-controversy conjunction arrived on the scene after nearly a century of ex parte practice and provides scant support for the view that an adverse-party requirement applies across the board to all matters brought before Article III courts.

Stepping back from this genealogy, we observe that, from a textual perspective, the conjunction of cases and controversies runs afoul of the commonplace presumption that legal drafters use different terms to convey different meanings.361 That presumption bears particular force here, given that in Article III, the terms “cases” and “controversies” are repeatedly deployed in two different ways. The term “cases” is generally used where a grant of jurisdiction depends on the subject matter of the action, whereas the term “controversies” is used exclusively where the grant of jurisdiction depends on the identity of the parties opposing one another.362 Indeed, some scholars (including one of us) have treated the terms as potentially conveying different meanings, arguing that “cases” may be the broader of the two and may include both civil and criminal matters, while the narrower “controversies” may include only disputes of a civil character.363 Pushaw, by contrast, has questioned this civil-criminal distinction and argued that the terms may actually describe two different functions of the federal judiciary.364 For Pushaw, cases that implicate federal law invite the federal courts to play an expositional role, and controversies simply call upon the federal courts to provide an unbiased forum for the adjudication of disputes.365 While many scholars now agree that controversies differ from cases, no consensus has yet emerged to explain what the difference is.

Our construct of non-contentious jurisdiction helps to explain the conspicuous difference in usage between the terms “case” and “controversy” in a manner that accounts for the presence of ex parteproceedings on federal dockets. On our view, and in keeping with the Marshall-Story definition of a “case,” federal courts have the power to exercise non-contentious jurisdiction in federal question proceedings that have been assigned to them by Congress. We think “cases” include both criminal and civil matters and at the same time contemplate a special function for federal courts. As this Article has noted, non-contentious matters crop up on both the civil and criminal side of the federal docket. Just as federal bankruptcy proceedings require federal judicial administration of the bankruptcy estate, so too do federal criminal matters frequently lead to the issuance of ex parte search or arrest warrants and the entry of convictions on the basis of non-adverse guilty pleas.366 The term “case,” particularly as defined by Chief Justice Marshall and Justice Story, extends broadly enough to encompass all such proceedings. Article III “controversies,” by contrast, require a dispute between designated opponents and exclude original petitions for the performance of the administrative functions associated with non-contentious jurisdiction.367

We thus take Pushaw’s suggested distinction in a new direction,368 emphasizing less the special law-exposition role of the federal courts and more their power to exercise their judicial functions despite the lack of a controversy when Congress has called for the exercise of federal judicial power. A “case,” on this view, might arise under federal law or touch matters of admiralty and maritime jurisdiction, without invariably entailing the joinder of adverse parties. Federal courts might plausibly be given—and, as we have seen, often have been given—the authority to exercise judicial judgment in the administration of federal law “cases” on an ex parte or non-contentious basis. That was certainly the view of the Court in Tutun, which concluded that naturalization petitions give rise to “cases” within the meaning of Article III,369 and it is a view that permits theory for the first time to cohere with text and practice.

2. Hayburn’s Case and the Lessons of History

How, then, to account for Hayburn’s Case?370 Congress did, after all, assign the circuit courts responsibility for processing the pension claims of disabled veterans on an ex parte basis, and three circuit courts did, indeed, refuse to entertain the claims in question371 (although the judges of some of the courts agreed to hear the claims, extrajudicially, as “commissioners”372). While the Court did not decide the question itself, the circuit courts wrote letters to President George Washington, explaining their refusal to do the business. Set forth in footnotes to the Court’s inconclusive proceedings, the letters point to two flaws in the pension scheme. The first was a lack of judicial finality: the circuit court decisions were subject to revision by an executive branch official (the Secretary of War) and then by Congress.373 The second was a concern with the judicial nature or the “judicial manner” of the proceeding.374 Although the finality concern seems straightforward, the letters do not say precisely what they mean by the second critique.

Lacking a clear explanation, some scholars have speculated that these doubts as to the judicial nature of the proceeding were meant to express concern with the ex parte nature of the claims. The first edition of Hart and Wechsler’s federal courts casebook put the issue, characteristically, in the form of a question: “Was the lack of provision for any party defendant one of the reasons why the judges thought that the statute did not call for the exercise of ‘judicial power’?”375 The current edition, also characteristically, puts the matter more forthrightly. After posing the hypothetical possibility of a statute assigning the determination of federal Social Security disability claims to the federal courts on an ex parte basis, the current edition suggests such a statute would fail: “Hayburn’s Case, however, seems to reject rather decisively Congress’s effort to enlist federal courts to act as administrative agencies by applying law to fact outside the context of a concrete dispute between adverse parties.”376 The view that Hayburn’s Case forecloses ex parte administration of claims has become quite widespread.377

Widespread—but, we think, anachronistic. Perhaps the strongest evidence against an adverse-party reading of Hayburn’s Case lies in the federal courts’ contemporary and subsequent acceptance of ex parte duties of various sorts. Indeed, in Hayburn’s Case itself, the Supreme Court did not insist on the appearance of adverse parties. Randolph proceeded by “motion” on behalf of his client, William Hayburn, and that appears to have been thought sufficient to authorize an initial evaluation of the merits.378 No one demanded service on, or the appearance of, the respondent circuit court.379 In the wake of Hayburn’s Case, moreover, Congress reassigned pension duties to the district judges on an ex parte basis.380 More significantly, as we showed earlier, Congress repeatedly assigned administrative matters to the federal courts.381 Such matters surely would have implicated the rule against the judicial acceptance of administrative assignments, had such a rule emerged from Hayburn’s Case. That was what Justice Brandeis apparently meant by referring to the case in the course of upholding ex parte naturalization proceedings in Tutun.382

In addition, we have reviewed the contemporaneous commentary and do not believe that the circuit judges’ refusal to act was based upon the ex parte character of the proceedings.383 Apart from the concern with finality, which was prominently featured in every account of the case, one finds a smattering of additional concerns, unrelated to the lack of adverseness, that may explain why some of the judges considered Congress’s scheme to require the performance of non-judicial duties. In proceedings before the House of Representatives in April 1792, held shortly after the Pennsylvania circuit refused to act, the reporter described the problems as follows:

[I]t appeared that the Court thought the examination of Invalids a very extraordinary duty to be imposed on the Judges: and looked on the law . . . as an unconstitutional one, inasmuch as it directs the Secretary of War to state the mistakes of the Judges to Congress for their revision . . . . Another objection, on the part of the Judges, was, that whereas there are laws now in force, prescribing a day, beyond which the court shall not sit, this new law declares that the court shall not sit five days for the purpose of hearing claims, whether they be offered or not; and leaves nothing to the discretion and integrity of the Judges, to sit as long as they have public business to do.384

On this account (which precedes the court’s letter to President Washington), the Pennsylvania circuit viewed the absence of finality as the master objection and identified two other criticisms that we might today characterize as matters of judicial dignity. First, the statute called upon the court to conduct a physical examination of the wounds of the invalids, a duty the judges apparently regarded as distasteful.385 Second, the statute required that the circuit courts “remain at [their] places” for “five days, at the least, from the time of opening the sessions thereof” to allow disabled veterans to file their claims.386 In the early days, many circuit courts would sit for a day or two at most and then adjourn.387 Viewing the duty to sit as inconsistent with the “discretion and dignity” of their judicial office, the Pennsylvania circuit judges may have had this affront to their discretion in mind in criticizing the law as imposing duties not of a “judicial” character.388

Apart from the report in the House proceedings, the editors of the Documentary History of the Supreme Court have published a previously overlooked set of notes, authored by Justice James Iredell during the August 1792 argument in Hayburn’s Case.389 In describing “objections” to the pension statute, Justice Iredell’s notes read as follows:


1.Not of a Judicial nature.

2.Not to be exercised in a Judicial manner.

As to the first, it must be found in the Constitution

all Laws under the United States &c.

Contracts equally valid &c.

Pensioners. all public Services

Congress have done nothing more than to direct [the pensioners’] titles to be re-examined

In effect a Suitor.

Petitions of Right & Monstrans de droit Destitute of forms of Writ

Suit a Demand of any thing.

A more dignified mode of becoming a Defendant

2. Not to be executed in a Judicial way.


To inspect wounds in the case of Mayhems.

Substance only to be regarded where a Sovereignty permits itself to be sued.

Forms may be disregarded where Parties agree.390

Even as it poses obvious interpretive challenges, this evocative fragment may provide a window into the nature of the Justices’ concerns. The second “objection” tends to confirm that one or more Justices continued to view the obligation to examine the wounds of the petitioners as casting doubt on the “judicial manner” of the proceeding. Justice Iredell’s notes suggest that someone attempted to respond by invoking the “example” of “mayhems.” At common law, as various digests and abridgments of the day confirm, a judge called upon to hear a case of “mayhem” was obliged to inspect the plaintiff’s wounds in the course of adjudicating the claim.391 The mayhem example seems intended to answer any doubts (apparently unrelated to any concern with a need for adverse parties) that had arisen as to the “judicial” quality of the examination obligation.392

Justice Iredell’s account of the first objection addresses a different issue. One could argue that the arguments in Justice Iredell’s notes denote a lingering concern with the formal joinder of the United States as a defendant and therefore provide some support for an interpretation of the circuit court letters as reflecting a concern with proper parties. But a variety of considerations point away from adopting this adverse-party gloss on Hayburn’s Case. First, none of the Justices suggested, either in the letters or in comments collected in Justice Iredell’s notes, that the federal courts lacked power over the proceedings in the absence of adverse parties. The concern instead appeared to focus on sovereign dignity and formal consent to suit.393 Second, of the broad mix of considerations in play, only the concern with finality was consistently articulated and broadly shared.394 Third, the Justices’ views were apparently evolving; while the five-day provision informed the circuit court’s initial response in April, it did not appear in Justice Iredell’s notes of the argument in August.395 Fourth, it may be difficult ultimately to separate the concern with the manner of suing the United States from the problem of finality. Congress’s desire to retain control over the purse strings certainly informed its approach to pension claims and later led it to assign money claims to legislative courts that were not constrained by Article III’s judicial finality requirement.396

The lesson of Hayburn’s Case is not that the federal courts lack power to hear ex parte proceedings, but that they can act only where their decision will have a binding, legally determinative effect. The prospect of executive revision would have denied that effect to the courts’ pension decisions. And the lack of finality explains subsequent cases in which the Court has invoked Hayburn’s Case to support the proposition that the work of commissioners lies beyond the judicial power conferred in Article III. In such well-known cases as Ferreira and Gordon,397 the Court refused to accept an appellate role in reviewing the preliminary work of non-Article III tribunals. In each case, Congress had failed to ascribe finality to the adjuncts’ work, bringing the cases squarely within the finality principle of Hayburn’s Case. Rather than a precedent that rejects judicial administration, in short, Hayburn’s Case should be read as a precedent that insists on judicial finality.

3. Feigned Cases and Adverse Parties

In attempting to justify the adverse-party requirement, scholars also sometimes point to the hostility that courts now direct towards feigned or collusive cases, which were a commonplace of early federal practice but now are soundly repudiated.398 Feigned cases, which have a long pedigree in English and American judicial proceedings, are cases constructed by the parties upon a contrived or assumed set of facts in order to obtain a judicial decree or decision on a point of law.399 Importantly, however, the decisions that restrict the use of collusive cases do not actually question the power of the federal courts to hear non-contentious proceedings in general, but only collusive proceedings that assume the form of contentious ones. Consider Lord v. Veazie,400the decision that Justice Scalia (in Windsor) and many scholars have identified as an important early articulation of the adverse-party requirement.401 There, Chief Justice Taney minced no words in decrying the parties’ invocation of judicial power in collusive proceedings:

It is the office of courts of justice to decide the rights of persons and of property, when the persons interested cannot adjust them by agreement between themselves,—and to do this upon the full hearing of both parties. And any attempt, by a mere colorable dispute, to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, when there is no real and substantial controversy between those who appear as adverse parties to the suit, is an abuse which courts of justice have always reprehended, and treated as a punishable contempt of court.402

In accordance with these views, the Court dismissed an appeal after it became clear that the parties were not true adversaries but had conspired in presenting a feigned case that was meant to secure an advantageous statement of the law for use against an unrepresented third party.403

Given the potential for abuse of the rights of third parties, one can readily understand why the Court attempted to limit the use of feigned proceedings. Yet historians agree that feigned proceedings were a fairly commonplace tool of adjudication in the early Republic.404 Previous work identifies property disputes and tax cases as primary exemplars of feigned cases. For example, in Hylton v. United States, the officials of the Treasury Department structured a feigned dispute to obtain a test of the federal carriage tax.405 Similarly, in Pennington v. Coxe, the parties set up a wager agreement that would satisfy the amount-in-controversy threshold needed to procure review in the Supreme Court.406 Other well-known examples of cases alleged to be feigned include Fletcher v. Peck,407 M’Culloch v. Maryland,408 and Cohens v. Virginia,409 where fictitious factual circumstances were pleaded in order to secure a test of the constitutionality of state laws.410

One can best grasp the early appeal of feigned proceedings when one understands their similarity to a modern declaratory judgment action. Most feigned proceedings enabled parties to secure a definitive judicial clarification of law or fact as the basis for ordering their affairs. In Hylton, the parties genuinely disputed the constitutionality of the carriage tax; ownership of 150 carriages was feigned only to ensure access to the Court’s docket. Similarly, in Pennington, the feigned wager between the parties was designed to secure access to a federal trial docket for a resolution of a genuine dispute.411 Taking account of these developments, the Court explained in Lord that amicable actions are “approved and encouraged, because they facilitate greatly the administration of justice.”412

Yet the very idea of an agreed-upon dispute posed a threat to the interests of courts and third parties. Just as courts today issue declaratory judgments only in cases of “actual controversy,”413 so too courts in the eighteenth and nineteenth centuries worried that litigants would present amicable cases to obtain a legal pronouncement for reasons other than to resolve a genuine disagreement about the law.414 Hence the idea, also expressed in Lord, that “there must be an actual controversy, and adverse interests.”415 The Court attempted to ensure compliance with this adverse-party limit by threatening lawyers who brought improper feigned cases with contempt sanctions.416

Lord thus introduces the idea that parties may contrive amicable proceedings to obtain a declaration of their respective rights only in cases of genuine uncertainty as to the law applicable to their own circumstances. When the parties lack adverse interests, feigned litigation often aims to secure a precedent rather than to resolve a dispute. Feigned cases to procure advantageous precedents became particularly troublesome during the Gilded Age, as railroads and other regulated entities hit upon ingenious strategies to structure private litigation that would necessitate the adjudication of constitutional issues.417 In one such case, a railroad contrived to have a passenger bring suit for damages after seeking and being denied the opportunity to purchase a ticket at a new regulated rate.418 In other cases, friendly shareholders would initiate a derivative suit to block the corporation from purchasing bonds issued by a federal agency,419 and friendly trustees would request instructions as to the legality of a course of action in the face of feigned constitutional uncertainty.420

The Court’s willingness to entertain more or less friendly constitutional challenges to government regulation came under fire from Progressives and New Dealers. In Ashwander v. Tennessee Valley Authority, Justice Brandeis spoke for four members of the Court in arguing against the friendly shareholder’s derivative suit as a tool of constitutional adjudication.421 Concurring in the majority’s decision to uphold the Authority’s role in the market for electricity, Justice Brandeis argued that the Court should not have reached the merits.422 The first precept on Justice Brandeis’s well-known list of justiciability limits focused on the need for adverse parties:

The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions ‘is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.’423

Justice Brandeis knew from his own experience as an advocate that the record was crucial to the defense of the constitutionality of government regulation.424 He presumably also knew that parties to a friendly dispute over the constitutionality of regulation could not be relied upon to develop a record that would ensure a searching evaluation of the law’s justification and its impact on regulated entities.

Apart from helping to ensure that the Court could effectively perform its role in constitutional adjudication, Justice Brandeis’s emphasis on the need for adverse parties was echoed by Congress’s actions to secure a place for the government in the litigation of constitutional claims. In legislation enacted in 1937, one year after Ashwander, Congress called upon the district courts to notify the Attorney General of the United States of constitutional issues that arise in private litigation.425 In addition, the legislation conferred a right of intervention on the federal government, enabling it to defend the constitutionality of federal statutes.426 Now codified in Title 28, the federal intervention right has been buttressed by rules of procedure that oblige the parties in private litigation to perform the notification function.427 Notably, upon intervention the government was to have the right to present “evidence” and was to enjoy “all the rights of a party and be subject to all liabilities of a party . . . to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.”428 Congress, then, sought to buttress the factual and argumentative record on which findings as to constitutionality were to be based.429

Congress displayed much the same concern with institutionalizing adverse-party procedures in adopting the Declaratory Judgment Act of 1934.430 The act authorizes “courts of the United States” to declare “the rights and other legal relations of any interested party seeking such declaration.”431 But the act carefully limits the issuance of such declaratory judgments to cases “of actual controversy.”432 By authorizing declaratory judgments, the legislation significantly undercut the need for any further reliance on feigned or collusive suits to obtain the same sort of relief (thereby further pushing those proceedings to the margins of federal practice). By including a statutory requirement of an “actual controversy,” moreover, the Declaratory Judgment Act addressed concerns that the granting of declaratory judgments would be akin to the impermissible issuance of advisory opinions.433 Finally, the requirement of adverse parties helped to protect the interests of third parties from proceedings that might affect their rights.

The “cryptic” decision in Muskrat anticipated these statutory developments to some extent.434 The case arose after Congress enlarged the number of tribal members who were to participate in a land allotment, thereby reducing the stake of the original members of the group.435 When litigation was later filed seeking to enjoin the Interior Department from enforcing the later legislation, Congress authorized certain tribal members to challenge their reduced allotment by suing the United States in the court of claims.436 When that suit was dismissed, the tribal members sought review under a provision of the law authorizing direct appeal to the Supreme Court.437 The Court held that the matter lay beyond the power of the Article III judiciary.438 In the Court’s view, Congress was simply seeking an advisory opinion as to the constitutionality of the subsequent legislation, whereas the resolution of constitutional questions was limited to disputes between adverse parties.439 Notably, the Court agreed one year later to address the issue in the more familiar context of adversary litigation between tribal members and the Interior Department.440

Time has not been kind to Muskrat. Judge Fletcher argued that Muskrat has been superseded by the recognized power of federal courts to issue declaratory judgments and by subsequent cases that exercise that power in more adventuresome contexts.441 The Hart and Wechsler casebook reaches much the same conclusion, treating the case as “puzzling” and “cryptic” and suggesting that it would lack contemporary relevance if it did nothing more than cast doubt on the validity of declaratory judgments.442 One might argue that the decision anticipates Justice Brandeis’s effort to ensure (through the rejection of collusive claims) a proper record for constitutional adjudication.443 But it does not cast doubt on the power of federal courts to entertain non-contentious proceedings assigned to them by Congress. Indeed, Justice Brandeis cited Muskrat in Tutun for the proposition that the presence of a case or controversy was vital for jurisdiction, without suggesting that its insistence on adverse parties posed any threat to the power of the federal courts to hear naturalization petitions.444

IV. toward a theory of non-contentious jurisdiction

A. The Theory Sketched

1. Original and Ancillary Non-Contentious Jurisdiction

Having demonstrated the constitutional basis for the non-contentious jurisdiction of federal courts, we now face the task of delineating the forms of that jurisdiction and the principles governing it. First, we must distinguish between “original” and “ancillary” non-contentious jurisdiction. In our view, the non-contentious matters we have described in this Article can be separated into actions that are originally non-contentious and non-contentious features of actions that are ancillary to an actual or potential dispute. A federal statute conferring original non-contentious jurisdiction must provide for the assertion of a claim of right. Typically, the party will claim an entitlement to a benefit created by federal law, such as the right to naturalized citizenship or to seek a mitigation of penalties or the waiver of fees. In other contexts, the party seeks legal validation of an act or status, such as in the application for a warrant or the condemnation of property. In still other contexts, the party claims a right to the invocation of administrative or judicial machinery for the disposition of an estate, as in bankruptcy proceedings or the appointment of an equity receiver.

Apart from assigning federal courts “original” jurisdiction over non-contentious matters, we believe that Congress may also confer power on the federal courts to entertain “ancillary” non-contentious proceedings. Many of the examples of non-contentious jurisdiction that we cataloged in Part I arise in connection with a dispute between actual or potential adversaries. Consent decrees settle disputes between contending parties, just as guilty pleas resolve criminal charges, and default judgments are entered in connection with litigation to secure an unmet demand upon a party who has failed to answer the court’s summons. In all these instances, the power of federal courts grows out of their duty, in any case properly before them, to provide parties with the relief to which applicable law entitles them.445 Like consent decrees, which are ancillary to the resolution of pending disputes (as Redish and Kastanek have recognized), much of the non-contentious work of the federal courts takes place in the shadow of potential or actual contention. Both original and ancillary non-contentious jurisdiction have a place in our conception of federal judicial power.

2. The Elements of Non-Contentious Jurisdiction

Drawing on the Marshall-Story formulation of a case, as well as on the features of non-contentious jurisdiction handed down from the Romans, we think that Congress has power to assign federal courts responsibility for the adjudication or administration of certain claims brought without the presence of an adverse party. Recall what Chief Justice Marshall said in defining power over federal question “cases” (but not “controversies”) in especially broad terms:

[The federal question grant] enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law.446

Here, Chief Justice Marshall emphasizes three elements: the party must assert a claim of right, the claim must implicate federal law, and the claim must proceed in the “form prescribed by law.”447

Although Chief Justice Marshall did not say so expressly, the second element of his definition—the requirement that cases must implicate the Constitution, laws, or treaties of the United States—imposes an important limit on the scope of original non-contentious jurisdiction. While the federal courts may hear non-contentious “cases” that seek to vindicate a claim of federal right, the original non-contentious power does not extend to “controversies” defined by the alignment of the parties. Controversies really do require opposing parties, as Justice Scalia and Pushaw and Redish have observed. The paradigmatic example of such a controversy, a diversity dispute between citizens of different states, helped to define the early contentious work of the federal courts. Apart from the linguistic fact that a controversy connotes a dispute between parties, the federal courts have little business exercising original non-contentious jurisdiction over matters of non-federal law. State legislatures would not ordinarily welcome federal judicial administration of state law, for example, and lack the power to assign such matters to the federal courts even if they did welcome their assistance. The familiar “probate exception” to Article III might best be understood as an outgrowth of the principle that federal judicial power over controversies requires a dispute between adversaries and does not extend to original non-contentious applications for rights created by state law.448

But the inability of the federal courts to exercise “original” non-contentious jurisdiction over matters of state law does not preclude those courts’ exercise of “ancillary” non-contentious jurisdiction in controversies otherwise properly before them. As long as a dispute within the contentious jurisdiction of the federal courts implicates the judicial power of the United States, the court may grant the full range of approved remedies. This means that a federal court may undertake the inquisitorial duties associated with entry of consent decrees and default judgments in any matter properly before the court, even in diverse-party controversies that do not seek to vindicate any federal right. In this sense, at least, our construct of ancillary non-contentious jurisdiction applies to some matters that others might characterize as involving potential adversaries.

The final element of Chief Justice Marshall’s definition requires the party seeking to invoke the non-contentious jurisdiction of the federal courts to follow the form “prescribed by law.” This element of the definition properly captures the primacy of Congress in defining the scope of non-contentious jurisdiction. Congress can, as Justice Brandeis observed, assign administrative matters to federal agencies or to federal courts or create a system of shared responsibility among them.449 While the federal courts presume that Congress intends to preserve contentious judicial review of final agency action,450 no similar presumption should operate in favor of judicial resolution of non-contentious proceedings in the first instance. Federal courts, on this view, should accept congressional assignments of non-contentious work but should not seek out such assignments through the “alchemy” of statutory interpretation.451 Nor should they develop a counterpart to their disputed (and to some extent disavowed) power to recognize the existence of implied rights of action to enforce federal statutes that contain no explicit right of action.452 We see no basis for the creation of an implied non-contentious right of action that would enable private parties to choose a federal judicial proceeding instead of one in the proper agency (nor do we think it likely that federal judges would clamor to create such a doctrine).

At the same time, the common-law tradition, as confirmed by federal practice, can provide a form “prescribed by law” within which a party or parties may pursue uncontested proceedings. Default judgments, both in law and equity, have deep roots in the legal tradition. From the power to issue default judgments, courts derive the power to register settlement agreements and enter guilty pleas. In all of these instances, the federal courts proceed in ancillary non-contentious jurisdiction and do so without any specific grant of authority from Congress. Yet congressional approval of these practices can be easily inferred from the available legal materials. In the case of default judgments, authorized by Rule 55 of the Federal Rules of Civil Procedure, the Rules Enabling Act confers rulemaking authority on the Supreme Court, culminating in the promulgation of rules that take effect unless Congress disapproves of them.453 Judicial activity in uncontested bankruptcy proceedings, the entry of plea agreements, and the registration of settlements enjoy a similar foundation in positive law.454

3. Other Requirements for the Exercise of Non-Contentious Jurisdiction

Apart from the elements embedded in the Marshall-Story formulation of a “case,” several other requirements deserve a place in the definition of the scope of federal non-contentious jurisdiction.455 First, the federal courts can exercise non-contentious jurisdiction only where their decisions will enjoy the finality demanded by Article III. The finality requirement emerges from Hayburn’s Case, in which various justices and district judges adverted to the prospect of executive revision in refusing to accept the judicial role thrust upon them by Congress.456 The Court has consistently reaffirmed the finality rule in various settings,457 particularly in the context of ex parte proceedings. For example, finality concerns informed the Court’s approach to naturalization proceedings in Spratt v. Spratt.458 Speaking through the Chief Justice, the Court emphasized that a decision granting a petition for citizenship was subject to review but was to be regarded as a binding judgment unless it was overturned through proper proceedings.459 Justice Brandeis made much the same argument in Tutun, emphasizing that a judgment conferring citizenship was conclusive, although subject to proper forms of judicial revision.460 Under the common-law system, writs of scire facias and coram nobis were available to reopen proceedings and challenge matters of record. (Those writs no longer control in federal courts, having been superseded by the all-purpose Rule 60 motion.)461 As long as the courts themselves preside over the revision of their own decrees, no problem of executive revision would appear to arise, even where the government itself is the party seeking to reopen the judgment.462

Although finality is justly regarded as essential to the exercise of judicial power, finality in the context of non-contentious jurisdiction does not require final judicial resolution of an entire dispute. That is the function of contentious jurisdiction. Instead, finality simply requires the conclusive determination of the issue that has been assigned to the federal courts for decision (subject, perhaps, to appeal to a higher Article III court). On this view, federal courts can determine a single issue in the context of a proceeding that will ultimately be resolved by a different institution. Consider the initial fact-finding preceding the resolution of a petition for remission of penalties; Justice Story explained that it was upon the district court’s “statement of the facts, and this only, that the secretary is authorized to proceed.”463 Consider as well the enforcement of discovery requests, whether in support of a foreign proceeding (through letters rogatory) or in support of administrative investigations (through administrative subpoenas). In such matters, the federal court conclusively resolves the right to discovery, but the court does so in support of another judicial or administrative institution’s proceeding.464

Second, non-contentious jurisdiction obligates the federal trial court to conduct its own investigation of the facts and law that govern the propriety of the proposed judgment. We saw in the example of prize cases, for instance, the robust role assumed by the admiralty court in determining the basis for condemnation.465 An explanation for this role may lie in the concern that courts might have felt for the accuracy or completeness of cases presented to them on an ex partebasis; as was seen in Roman law and in proceedings under the Naturalization Act of 1790, in cases of non-contentious jurisdiction, the court bears responsibility to test fully the legality of the claim.

The inquisitorial duty that we propose can be illustrated in today’s terms by the rules governing the entry of default judgments, which require the district court to determine if the well-pleaded facts in the complaint support the entry of judgment and to fix the amount of damages based on the court’s own investigation.466 A similar inquisitorial duty attaches to the judicial role in overseeing class action settlements, bankruptcy orders of various kinds, guilty pleas, and consent decrees.467 The FISA court has taken important steps to improve the quality of its ex parte decisions, hiring a group of legal advisors to conduct thorough initial investigations of important petitions and inviting the Department of Justice to highlight and thoroughly brief any suggested changes in the law.468

Inquisitorial proceedings also cast special duties of candor on the advocates who appear before the federal courts. The Court’s dismay in Lord v. Veazie reflected its dissatisfaction with the parties’ failure to disclose that the proceeding lacked true adversaries; the threat of contempt was meant to ensure that lawyers attended to their duty of candor to the court in the future.469 Rule 3.3 of the American Bar Association’s Model Rules of Professional Conduct similarly recognizes a duty of candor in ex parte proceedings: “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.”470 This duty of candor has been thought to apply with special force to proceedings before the FISA court, where the absence of an adversary and the secret nature of the proceedings impose a particularly demanding duty on the government attorneys who appear before that court.471

Third, the federal courts may accept non-contentious assignments only where the task at hand involves the exercise of judicial, rather than ministerial, judgment. Here again is Chief Justice Marshall’s description of the judicial role in naturalization: “[The courts] are to receive testimony, to compare it with the law, and to judge on both law and fact. This judgment is entered on record as the judgment of the court.”472

Chief Justice Marshall’s description anticipates later comments from Justices Story and Brandeis. In discussing petitions for remissions of forfeitures, Justice Story worked hard to defend the judicial quality of the proceeding: in taking evidence and making factual findings, “the judge exercises judicial functions, and is bound by the same rules of evidence, as in other cases.”473 Justice Brandeis’s comment in Tutun was similar: the applicant seeking naturalization “must allege in his petition the fulfillment of all conditions upon the existence of which the alleged right is made dependent; and he must establish these allegations by competent evidence to the satisfaction of the court. In passing upon the application the court exercises judicial judgment.”474 In all of these instances, the Court confirmed the judicial quality of the judgment being exercised and the point that this quality is crucial to the propriety of the exercise of non-contentious jurisdiction.475

The Supreme Court’s emphasis on the judicial quality of the work in these cases suggests that while some administrative assignments are proper grist for the mill of the Article III judiciary, others might be considered ministerial in character and therefore appropriate only for assignment to another department or officer. The idea of ministerial action played an important and somewhat unsettled role in the early Republic. Ministerial action was subject to judicial control through writs of mandamus, while the exercise of judicial discretion by a lower court was not typically subject to mandamus control.476 Similarly, officers acting in a discretionary capacity typically enjoyed immunity from suit for actions taken within the scope of their jurisdiction, while officers acting in a ministerial capacity were subject to suit when they failed to perform duties required by law.477 Marshals, though assigned to serve process and execute the judgments of federal courts, were officers of the executive branch and thus were subject to suit for the unlawful performance of their duties.478 Judicial clerks were also considered ministerial officers in the sense that individuals who claimed a legal entitlement to action by the clerk (for example, copying a court record or entering a judgment) could apply to the court to compel performance of the duty.479

The judicial/ministerial distinction has provided grounds for the Court to reject administrative assignments that were improperly ministerial or that simply required the rote performance of a duty and did not call for the exercise of judicial judgment.480 One can get a sense of the intuition underlying this admittedly blurry line by considering the initial judicial reaction to the pension law: the Circuit Court for the District of Pennsylvania reportedly refused the assignment in part because the statute compelled the court to sit for five days to receive pension applications and thus abrogated the court’s discretion to close the court session when the work was complete. Such obligatory work was apparently viewed as not of a “judicial” nature.481 The nation’s first copyright law furnishes an additional example. An author seeking a copyright on a “map, chart, book, or books” was obliged to lodge a copy with the Secretary of State and to “deposit” a printed copy of the title of the work with the federal district court of the district in which the author resided.482 In specifying the duty to record, no judicial judgment was contemplated. Instead of assigning the duty to the court itself, Congress provided that “the clerk of such court is hereby directed and required to record the same forthwith, in a book to be kept by him for that purpose.” Congress apparently held the view that work of a clearly ministerial character was properly assigned to the clerk, leaving the court to enforce the duty (if necessary) through a proper judicial proceeding.483

The judicial/ministerial distinction provides a straightforward answer to the question of how the federal courts in the early Republic came to view themselves as empowered to hear ex parte matters in certain cases but not in others. While the pension applications at issue in Hayburn’s Case lacked the finality necessary to make them proper objects of the judicial power, the same criticism cannot be made of the naturalization process. Federal courts passing on naturalization applications were making conclusive determinations of aliens’ entitlement to citizenship. They were also, as Chief Justice Marshall and Justice Brandeis later observed, exercising judicial judgment in determining whether the petition met the statute’s parameters and was adequately supported by the factual record.484 The apparent tension between pension claims and naturalization petitions disappears on our account; both were forms of non-contentious jurisdiction, but the pension claims lacked the finality necessary to bring them within the judicial power.

Although the judicial/ministerial distinction provides the federal courts with authority to reject proceedings that do not call for the exercise of judicial judgment, the practice of the federal courts has been to defer to Congress and accept ex parte assignments in doubtful cases.485 This practice of deference poses a potential threat to the federal courts, since Congress has control over the assignment of a truly staggering array of federal administrative chores. The threat may appear more pointed given the implicit obligation of the federal courts in such cases to conduct their own investigation of the facts on which their determination will be made.486 While we recognize that a threat does exist, we remain fairly sanguine. Congress for the most part values the dispute-resolution and law-elaboration roles of the federal judiciary and generally works to support those roles.487 Moreover, Congress can be expected to monitor the cost effectiveness of its administrative systems. It seems unlikely that a Congress already concerned with the cost of, say, administering Social Security benefit claims would turn that task over to the federal courts. However efficiently the courts might process the claims, the cost per claim would predictably far exceed that of the current administrative arrangement. Except when Congress decides that proper administration requires the high-powered (and high-priced) judgment of the federal judiciary, as in the case of the FISA courts, we can expect Congress to continue to rely on agencies instead.

Fourth and finally, as was the case under Roman law, non-contentious jurisdiction should end where the proposed judicial order or judgment threatens to encroach on the rights of third parties not before the court. This principle is central to the notion of non-contentious jurisdiction and, under the Due Process Clause of the Fifth Amendment, applies to all proceedings in federal court.488 To the extent that a single party seeks to register or claim an individual federal right or benefit, third-party rights are unlikely to be implicated in most circumstances. More for one individual, such as a naturalized citizenship or pension benefit, does not necessarily mean less for someone else (except for the taxpayer, of course, who lacks standing to mount a federal court challenge to congressional decisions to distribute such largesse).489 But in other circumstances, where the exercise of non-contentious jurisdiction does pose a potential threat to the rights of third parties (such as in the case of settlement class actions, the issuance of FISA warrants, and some bankruptcy proceedings), federal courts must be especially vigilant to ward off the entry of judgments that burden those who have not been brought before the court.490 Potential problems with third-party rights may not deprive the court of power to hear a case on the non-contentious side of its docket, but they certainly require a more searching investigation and may require those seeking to invoke the court’s jurisdiction to offer separate justification.

B. The Theory’s Implications for the Article III Injury-in-Fact Requirement and Separation of Powers

The recognition of non-contentious jurisdiction places some pressure on the rules that govern standing under Article III. As the Court frequently has reiterated, a plaintiff may invoke the judicial power of the judicial branch only when she has suffered an “injury in fact,” only when the injury is “traceable to” the defendant’s violation of a legally protected interest, and only when the relief sought from the court will “redress” that injury.491 This focus on the redress of injuries reflects judicial suspicion of attempts on the part of Congress to confer standing to enforce general compliance with the law through citizen-suit provisions. The Court rejected one such attempt in Lujan v. Defenders of Wildlife, turning back a claim that sought to vindicate the public’s interest in government compliance with environmental consultation requirements,492 and it has taken a hard look at other congressional grants of standing.493 In the context of qui tam litigation, where an individual pursues fraud claims against government contractors on behalf of the federal government, the Court refused to regard the bounty payable to a successful claimant as creating a sufficient interest to warrant standing.494 Instead, in order to accommodate the historical pedigree of qui tam actions without casting standing doctrine into doubt, the Court treated the right to pursue a qui tamaction as one that the United States (which possesses the real injury-in-fact) assigns to another party.495

Whatever sense the Court’s three-pronged inquiry makes when one party seeks redress from an opponent following an invasion of his rights, it simply does not fit with the realities of non-contentious jurisdiction as practiced by federal courts. In deploying non-contentious jurisdiction, Congress can create individual rights and enable individuals to bring an ex parte action in federal court to secure formal recognition of the right in question. Such individuals have not suffered an “injury-in-fact”; rather, they seek to establish a legal interest through the assertion of their claim. Such an ex parte proceeding bears more than a passing resemblance to a claim for a bounty, in that the petitioner seeks recognition of a right as a “byproduct” of the litigation process.496 In Tutun, for instance, the petitioner sought relief from the district court’s denial of his application for naturalized citizenship.497 Clearly, the petitioner could make out a conventional claim of Article III standing at the appellate level: reversal of the district court decision would redress the injury caused by the denial and provide the relief sought. But the initial petition sought a benefit—a certificate of citizenship—rather than redress for some injury-in-fact. Non-citizens suffer no Article III “injury” from the creation of a system of naturalization; in seeking naturalized citizenship, they pursue a change in status that will arise as the byproduct of the proceeding. Nonetheless, by treating the original petition as a case within Article III, Justice Brandeis pointedly rejected the government’s argument that jurisdiction did not exist because the petitioner sought a mere “privilege.”498

As with the adverse-party requirement, one might be tempted to resolve the tension between non-contentious jurisdiction and the injury-in-fact requirement by adapting the Court’s rejection of “byproducts” to the lessons of history. After all, the Court has sometimes adjusted its standing doctrine to take account of historical practice.499 As we have also seen, however, non-contentious proceedings are not a one-off aberration, but a well-established category of federal court jurisdiction. A cleaner solution therefore lies in our suggested bifurcation of the judicial power. By dividing judicial power into contentious and non-contentious jurisdiction, the Court can retain much of the doctrinal framework that now governs the handling of adversary disputes, which to a large extent tracks the plaintiff’s entitlement to a remedy of damages or injunctive relief. At the same time, the Court can develop a new body of rules to govern the practice of non-contentious jurisdiction, in which the plaintiff’s requested relief dictates a different formulation of the standing requirement.500 We propose the following reformulation of the standing test in matters of non-contentious jurisdiction: the Court need not insist on an “injury-in-fact,” but should require, in the words of Chief Justice Marshall, a party who “asserts his rights in the form prescribed by law.”501

Adopting this reformulation of the current standing test in matters of non-contentious jurisdiction will not frustrate the important role the standing doctrine plays in maintaining the separation of powers between the judiciary and the political branches. Many argue that the separation-of-powers principle mandates the injury-in-fact rule, which prevents courts from asserting supremacy over Congress or the executive.502 Although the Court’s standing decisions often invoke the separation of powers and the need to avoid judicial aggrandizement at the expense of the political branches, one has difficulty identifying judicial hubris in the acceptance of ex parte assignments from Congress. Most of the time, the ex parte matters that the federal courts have heard over the years have tended to present fact-bound issues with little broader significance than their contribution to the administration of a statutory scheme, and it would be unusual for such matters to embroil the courts in attempts to supervise the decisions of the political branches.503

Moreover, when a non-contentious proceeding requires explication of federal law or judicial review of the constitutionality of legislative or executive action, standing should still play a role. As was seen in Ex parte Fitzbonne,504 such occasions do arise, but the mere invocation of non-contentious jurisdiction should not permit a party to evade Article III’s justiciability requirements. Standing doctrine prevents parties from seeking determination of a question of law when they lack a concrete, individual interest in the determination of that question and when that determination will not yield anything of consequence other than the court’s pronouncement itself. Although the traditional formulation of standing requirements for parties in contentious proceedings is not readily translatable to parties in non-contentious proceedings, the core of standing doctrine can be reformulated to perform largely the same function in non-contentious actions. The standing test we propose above would require that, before addressing a question of law, a court should satisfy itself that the parties before it have asserted an actual, concrete right and that their entitlement to that right necessarily turns on resolution of the question of law.

In addition, to prevent a lack of adverseness from undermining the integrity of a court’s resolution of legal issues, it might be prudent to accord legal pronouncements in non-contentious cases less precedential weight in future cases. Such treatment would have the further benefits of preventing non-contentious proceedings from yielding precedents binding on adverse third parties (the lesson of feigned cases) and of discouraging invocations of non-contentious jurisdiction for purely ideological ends (the lesson of the Progressive era’s attack on friendly constitutional litigation).505

Our emphasis on the need for prudence in the management of non-adverse proceedings provides a natural foundation for Justice Kennedy’s conclusion in Windsor that the adverse-party requirement is not constitutional in dimension.506 Although our adversarial system has come to emphasize the need for fully adverse presentations as a prelude to constitutional adjudication, Article III does not limit the judicial power to cases in which adverse parties contest the matter at hand. Nevertheless, the Court’s teachings about the need for concrete adverseness in contentious cases counsel prudence before proceeding to decision in a case such as Windsor.507

C. The Theory Applied: Judicial and Administrative Work

Traditional assumptions about the adversary nature of the federal court system have led to frequent confusion in attempts to properly classify the ex parte work of courts and judges, and such encounters still engender confusion today. We argue in this section that the theory presented in this Article offers a more persuasive account of the practice of federal jurisdiction than the adverse-party theory. In addition, we show that the theory of non-contentious jurisdiction helps to solve a surprising number of difficulties that have arisen in the judicial management of administrative chores.

1. The Distinction Between Courts and Judges

The construct of non-contentious jurisdiction may help to clarify the line between the work assigned to Article III courts and the work assigned to the judges who staff those courts. Since the Founding, the nation’s jurists and lawyers have debated both the nature of the “judicial Power” that Article III confers on federal courts and the scope of Congress’s power to assign additional chores to federal judges. Consider an early episode associated with the pension claims of disabled veterans. Congress first assigned claim-assessment duties to the circuit courts, as courts.508 Later, after the circuits refused those assignments, Congress conferred an initial fact-finding function on the “judges” of the district courts or on commissioners appointed by those judges.509 One might raise various questions about that solution. First, one might question Congress’s power to assign non-judicial work to the Article III judiciary. Second, one might doubt Congress’s power to assign federal judges work outside of their normal judicial responsibilities. To the extent one regards the fact-finding office as an inferior office of the United States, Article II of the Constitution casts doubt on congressional appointment.

One might be tempted to treat all assignments to the “courts” as grants of judicial power and all assignments to “judges” as presumptively operating to assign ministerial work of a non-judicial character. But that simple distinction does not appear to explain either the history or the modern treatment of such assignments. For example, when Congress conferred power on the federal courts to hear ex parte warrant applications in connection with Alexander Hamilton’s tax on distilling, the grant of power was assigned to “any judge of any court of the United States, or either of them.”510 This economical grant of authority extends warrant-review powers to the courts themselves as well as to the judges who staff those courts. The logic underlying such a dual grant lies in the way that Congress had restricted the terms or meeting times of the courts it had created. If an inspector or collector needed a warrant, and the court was not in session, the statute would have clearly authorized the judge to act in a judicial capacity. Similarly, when Congress conferred habeas power on the federal courts in the Judiciary Act of 1789, it was careful to invest both the courts themselves (in the first clause of section 14) and the judges of those courts (in the second clause) with the power to review the legality of detention.511

The construct of non-contentious jurisdiction helps to explain why this dualism did not trouble the lawyers and jurists of the early Republic and should not cause distress today. Whether brought before a court or a judge, applications for warrants and writs of habeas corpus call upon courts to exercise judicial judgment and therefore present cases within the meaning of Article III.

Such an understanding of assignments of judicial work to Article III judges remains relevant today. Consider the Court’s comparatively recent decision in Hohn,512 which began with an ex parte petition to a circuit judge for a COA in a habeas post-conviction proceeding. Justice Scalia argued vigorously that such a proceeding could not be regarded as a case or controversy within the judicial power of the federal courts.513 But the Court disagreed, concluding that the application for a COA was a “case” in the circuit court for purposes of the exercise of the Court’s certiorari authority.514 We think the Court correctly recognized that Congress has the power to confer non-contentious jurisdiction either on Article III courts or on the judges of those courts, depending on its view of the nature of the proceeding, without placing the matter at hand outside Article III or the statutory provisions for appellate review that would otherwise apply.

2. The Probate Exception

The inability of the federal courts to exercise original non-contentious jurisdiction over “controversies” may help to clarify that most arcane of federal jurisdiction doctrines, the probate exception.515 While many theories have been proposed to account for the exception,516 and while the Supreme Court has sought to whittle the exception down to size,517 one can best explain the cases as reflecting the belief that the federal courts should not exercise non-contentious jurisdiction over matters grounded in state law. Probate proceedings can be non-contentious in character. They often begin with an uncontested “common form” application for the probate, or proof, of a will.518 If the court agrees that the will qualifies under applicable law for admission to probate, the court will appoint an administrator to oversee the collection and distribution of the estate’s assets.519 Although disputes may crop up in the course of administration and may present a controversy between diverse citizens within the scope of federal jurisdiction, the initial proceeding is not a “controversy.” On this reading, then, the initial petition does not satisfy the controversy requirement of Article III and does not come within the jurisdiction conferred on federal courts over state-law controversies between diverse parties.

The Supreme Court offered precisely this account of the probate exception in an overlooked nineteenth-century decision:

There are, it is true, in several decisions of this court, expressions of opinion that the Federal courts have no probate jurisdiction, referring particularly to the establishment of wills; and such is undoubtedly the case under the existing legislation of Congress. The reason lies in the nature of the proceeding to probate a will as one in rem, which does not necessarily involve any controversy between parties: indeed, in the majority of instances, no such controversy exists. . . . [B]ut whenever a controversy in a suit between such parties arises respecting the validity or construction of a will, or the enforcement of a decree admitting it to probate, there is no more reason why the Federal courts should not take jurisdiction of the case than there is that they should not take jurisdiction of any other controversy between the parties.520

These passages (interestingly, written by the same Justice Field who appears to have begun the conjunction of cases and controversies) convey two important ideas: that the power of the federal courts extends to any controversy or dispute between diverse parties, even where it happens to involve the validity of a will, and that the proceedings at the core of the probate exception were those of a non-adversarial character.521 The distinction thus presented tracks entirely with the limits of federal non-contentious jurisdiction put forth in this Article.

3. The Extradition Puzzle

The construct of non-contentious jurisdiction also helps to resolve doubts that have long dogged the process of international extradition. In the typical case, a foreign government applies to the United States for the extradition of an individual, and the Department of Justice initiates the proceeding by filing an extradition complaint before a judge or magistrate.522 Following the issuance of a warrant for apprehension, the judge or magistrate holds a hearing to determine the legality of the extradition request.523 If the judge or magistrate agrees that the case for extradition has been made (after considering the treaty and assessing the case for probable cause), the magistrate certifies the propriety of detention to the Secretary of State, who makes the final determination as to whether extradition should be ordered.524 The target of extradition may seek limited review by petition for a writ of habeas corpus, but the system does not provide for direct appellate review of initial extradition decisions,525 and a variety of questions have arisen as to the nature of the habeas tribunal’s power.526 From a practical perspective, moreover, reliance on habeas review can result in a series of duplicative proceedings.527

For reasons rooted in history, federal courts have often characterized the initial consideration of the complaint for extradition as a proceeding outside of Article III.528 This characterization apparently dates from the case In re Metzger.529 In Metzger, the government opposed the attempt of a detained individual to seek review, via habeas corpus, of a district judge’s decision to issue a certificate of extradition.530 Because the judge was said to be acting as a magistrate, and doing so outside of any established “tribunal,” the government claimed that the Court lacked supervisory power by way of habeas.531 The Court agreed that it lacked habeas jurisdiction because the case was decided by the district judge “at chambers” rather than in “court” in the exercise of a “special authority.”532 Having characterized the district judge’s action as non-judicial, or executive in character, the Court applied the rule of Marbury: the proposed issuance of a supervisory writ to the district judge was said to represent an exercise of the Court’s original, rather than appellate, jurisdiction, and to lie beyond the Court’s power.533 Since Metzger, many have regarded the district judge’s role in extradition proceedings as outside the traditional judicial power.534

Scholars have identified two reasons why the Metzger Court regarded the district judge’s extradition decision as outside of Article III.535 The first reason is based on a characterization of the executive’s inherent authority over extradition. A variant of this argument was made in 1799 by then-Representative John Marshall in the well-known case of accused British mutineer Jonathan Robbins. Marshall argued on the floor of the House that the issue of extradition “was a case for Executive and not Judicial decision.”536 Acknowledging that the federal courts might test detention through habeas corpus, Marshall nonetheless suggested that President Adams had properly made the final determination about extradition.537

The second reason is statutory. The treaty under which the Metzger Court acted (and which the Court considered self-executing) provided for “judges and other magistrates” to certify evidentiary sufficiency “to the proper Executive authority.”538 This treaty apparently gave the executive discretion over the final extradition decision.539 By incorporating the judicial determination into a process in which the executive was to make the final decision, the treaty may appear to have enlisted the judiciary into an essentially administrative or executive task. Hayburn’s Case, Ferreira, and Gordon all viewed the absence of judicial finality as rendering the judicial role merely executive or ministerial.540

Yet modern decisions correctly recognize that extradition presents no finality problem. Judge Frank Easterbrook, writing in DeSilva v. DiLeonardi,541 recognized that the Secretary of State does not have power to revise the judicial certificate but only to refrain from extraditing in cases in which the judge has found just cause. As Judge Easterbrook explained, the judicial decision finally determines the government’s right to extradite, and the Secretary simply decides whether to carry out the extradition (as she almost invariably does).542 But the Secretary cannot extradite without a judicial certificate and cannot overturn a judicial decision rejecting extradition on probable cause, treaty, or other grounds.543 Judge Easterbrook drew the logical conclusion: the government’s application for an extradition certificate gives rise to a “case” within the meaning of Article III to which the judicial power extends.544 He noted in a later decision involving the same parties that such applications could be assigned to the district courts as courts, and they could be subject to appellate review in the Article III hierarchy.545

That conclusion fits well with our view that non-contentious jurisdiction enables the district courts to conduct an administrative evaluation of an application for certification without exceeding the bounds of Article III. While extradition proceedings get underway with an ex parte submission, the evaluation of an application for a warrant or certificate of extradition surely qualifies as an exercise of judicial judgment and often includes adverse parties. District courts or magistrates evaluate the factual basis for the claim that the underlying criminal charge enjoys the support of probable cause, and they consider legal challenges to the extradition treaty or process. Recall that the Court in 1795 characterized Judge Laurance’s analysis of the warrant application in the case of Captain Barré as having occurred in the judge’s “judicial capacity.”546 On this basis, the Court concluded that the matter was not subject to review on mandamus. The Lawrence decision thus represents an early rejection of the administrative or ministerial conception of extradition work. Building on Lawrence, DeSilva, and Tutun, one might construct a plausible argument for the exercise of appellate review of extradition decisions under the current jurisdictional statutes. As we have seen, section 1291’s provision for appellate review of final district court “decisions” encompasses all “cases” in the district courts;547 on the logic of Tutun, appellate review would follow as a matter of course (thereby lessening the need for a second round of habeas review).

4. FISA Courts

Since the adoption of FISA in 1978, the Foreign Intelligence Surveillance Court has reviewed government applications for the approval of certain surveillance practices on an ex parte basis.548 As with other warrant applications,549 the government submits the request to the court without notice to the target of the proposed surveillance.550 But unlike the targets of other warrant proceedings, most FISA targets will never learn that the surveillance has been carried out and will never have occasion to challenge the warrant in the course of criminal proceedings. Unlike other warrant proceedings, moreover, the proceedings do not take place in the local federal courthouse; rather, they require the FISA judges to travel to a secret courthouse.551 If the FISC denies the government’s application, FISA provides for oversight by the Foreign Intelligence Surveillance Court of Review.552 The government does not invariably release either the decisions of the trial court or the opinions of the court of review, although a few decisions have come to light as a result of the leaks by Edward Snowden.553

Critics have argued that the FISC’s ex parte process presents both constitutional and practical problems and have put forward a variety of suggested cures.554 For example, Orin Kerr has argued that Congress should establish a special advocate within an existing security-cleared government department to offer adversary presentations during FISC proceedings.555 Steve Vladeck has urged instead that “private security-cleared lawyers, not government employees . . . serve as adversaries in secret litigation commenced by the government.”556 Such proposals have gained traction in Congress; newly introduced bills would attempt to ensure adversarial presentations by requiring the appointment of public interest advocates in certain situations.557 One commentator has argued that private attorneys might be appointed to serve as consultants to the court in proceedings deemed to require some adversarial presentation.558

We do not claim expertise in matters of national security and have little to add to the policy debate over the wisdom of introducing an adversary process to improve decision making at the FISC. We simply suggest that the FISC’s role in hearing warrant applications on an ex parte basis seems to fit comfortably within the scope of federal judicial power over matters of non-contentious jurisdiction. The FISA process calls for the court to determine that the government has complied with various statutory elements that regulate access to intelligence surveillance.559 The resulting decisions by the FISC serve as final decisions on the issues at hand: the government’s compliance with the statute and entitlement to conduct the surveillance in question. While the targets of such surveillance can contest various aspects of the proceedings that yielded the evidence introduced at their trials, courts hearing those trials treat the FISC’s determination as conclusive on the issue of the legality of the surveillance.560 Even if the courts were to reopen the FISA decision and reevaluate the showings, such judicial revision would not raise doubts about the judicial finality of the initial decision. To be sure, federal officials may not always discharge their duties of candor to the FISC and may exceed the scope of the warrant’s authority in carrying out the surveillance in question. Remedies should be available in such cases (just as they were in the nineteenth century when officers exceeded the scope of their warrants). But the possibility of executive branch missteps, while legitimate matters of litigation and policy concern, do not deprive the judicial process of its character as such.

5. Administrative and Judicial Classification

The growth of the Article III judiciary has spawned remarkable growth in the administrative infrastructure supporting the judicial function.561 Federal courts have faced nettlesome questions about the nature of specific proceedings, whether judges can participate, and whether, if they do, the proceedings qualify as cases subject to appellate review. For example, everyone agrees that the Administrative Office of the United States Courts (AO) does not exercise the “judicial power” of the United States within the meaning of Article III. But problems of characterization remain, as the Supreme Court’s decision in Mistretta v. United States562 confirms. In the course of upholding the power of Congress to create the United States Sentencing Commission within the judicial branch, the Court allowed Congress to offer administrative and legislative chores to Article III judges.563 The Mistretta Court held that, so long as the federal judges remain free to refuse the work, and so long as the work does not interfere with or encroach upon their other judicial duties, no Article III violation occurs when federal judges take on administrative or legislative work.564

Mistretta works well enough when the administrative task at hand, such as rulemaking or the formulation of sentencing guidelines, does not call for appellate review in the Article III judiciary.565 But ambiguities arise when judges perform administrative work that directly and adversely affects the rights of individuals. In such cases, the individuals may seek review within the Article III hierarchy only to find that the administrative characterization of the initial decision casts doubt on the availability of appellate review. We explore three such situations in this section: Judge Stephen S. Chandler’s effort to secure review of an adverse judicial council order; the often unsuccessful attempts of individuals to secure review of the denial of ex parte petitions addressed to a district judge; and the fascinating classification problem that divided the Justices in Printz v. United States.566 We think the construct of non-contentious jurisdiction helps to clarify the line between administrative work that lies outside of Article III, on the one hand, and that which forms part of the judicial power and can be reviewed in the ordinary course at the appropriate level in the appellate hierarchy, on the other.

a. Circuit Judicial Councils and Docket Assignments

In addition to creating the AO, Congress has established circuit judicial councils to oversee the judicial work in each regional judicial circuit. These councils, which are chaired by the Chief Judge of each circuit, perform a range of administrative chores in tandem with the circuit administrator.567 Among other tasks, the circuit judicial councils exercise control over charges of judicial misconduct and have the power to reassign cases among the district judges of the circuit.568 One district judge subject to such a reassignment, Judge Chandler, challenged the action of the judicial council by filing a petition for mandamus and prohibition review in the Supreme Court.569 The majority essentially dodged the question, concluding that Judge Chandler had failed to make out a case for intervention on the merits.570 It therefore left undecided the nature of the proceeding below and the power of the Court itself to review such proceedings.571

Concurring, Justice Harlan squarely confronted the character of the reassignment proceeding in the course of concluding that it was a proper task for the Article III judiciary.572 He first analyzed the work of the councils, finding that Congress had intended them “to act as judicial bodies in supervising the district judges.”573 While Justice Harlan acknowledged that the constitutional separation of powers could block the placement of this authority in a nonjudicial body, he treated the councils as judicial tribunals made up of Article III judges with the power to conduct their oversight duties “as a judicial function.”574 Having concluded that the task at the council level was properly judicial, Justice Harlan had “little difficulty” in determining that the petition for mandamus and prohibition review should be regarded as a “case or controversy” within Article III judicial power.575 When “the purpose and effect of the order are to restrict the judge’s performance of judicial tasks, and he alleges illegal interference with the exercise of his office, his petition presents a cognizable case or controversy just as does a petition for review of the disbarment of an attorney.”576

Our conception of non-contentious jurisdiction confirms the wisdom of Justice Harlan’s approach. Although the initial decision at the council level may emerge from a process that does not resemble a traditional dispute, case management certainly represents (as Justice Harlan observed577) a traditional judicial function that calls for the exercise of judicial judgment in the application of law to fact. What’s more, the decree reassigning cases may have the finality necessary to support appellate review.578 By treating the matter as one appropriate for the exercise of judicial power, Justice Harlan’s approach preserves the prospect of judicial review for substantial claims of right (even though he rejected Judge Chandler’s claim on the merits). Far better, we think, to preserve the prospect of review through the exercise of non-contentious jurisdiction than to characterize the work as non-judicial and raise questions about the availability of review. Confronted with similar questions, the judiciary should follow Justice Harlan’s lead, rather than the potentially confusing lead of Mistretta, which suggests that all administrative work falls outside of Article III.

b. Administrative Management of Fee Petitions

A series of recent decisions about appellate review of fee petitions offers a good illustration of the problems that arise from the improper characterization of judicial matters. The appellate courts have consistently taken the view that the ex parte fee decisions of the district courts should be regarded as merely administrative and thus beyond the scope of appellate jurisdiction.579 The question has arisen when individual lawyers seek review of the denial of an ex parte fee application under the Criminal Justice Act (CJA) and when members of the press seek review of the denial of applications to district courts for waiver of the fees otherwise associated with access to the database known as PACER (Public Access to Court Electronic Records).580 In both instances, federal law assigns the power to pass on the petition to the district court, but says nothing specifically about appellate review of the district court’s decision.581 Access to federal review thus turns on the meaning of the statute that generally confers appellate jurisdiction over the “final decisions” of the district courts.582 Although the federal appellate courts correctly recognize that Congress’s use of the term “decisions” in 1948 encompassed all “cases” in the district courts,583 they nonetheless hold that the term does not apply to administrative matters.584 As a result, the district courts often exercise final and unreviewable authority, absent mandamus review by the Supreme Court, over PACER applications, CJA fee requests, and perhaps other ex parte applications.585

We have no quibble with the general principle that the appellate courts should not review the administrative chores of the district judges. An appellate court would, for example, rightly refuse to review the law clerk hiring decisions of the district court. But the appellate courts have defined the ambit of administrative work too broadly and have done so in good measure because they lack an appreciation of the role of non-contentious jurisdiction. In both the PACER and CJA decisions, the appellate courts relied on the ex parte character of the proceedings below, along with the fact that they began with an original submission and could not be characterized as ancillary to a pending proceeding.586 As a result, the courts found that the petitions lacked the adverse quality needed to make the proceeding a “case” within the meaning of the judicial power. (Such an approach assumes that federal courts lack “original” jurisdiction over non-contentious proceedings, an assumption with which we obviously disagree.)

A moment’s reflection reveals the error of these decisions. As we have seen, ex parte applications to district courts for final decisions on claims of federal right are “cases” within the original non-contentious jurisdiction of the federal judiciary and within the appellate jurisdiction of superior courts in the Article III hierarchy. That was the lasting lesson of Tutun. The key to accurate identification of matters within the non-contentious jurisdiction of the district court (and the appellate courts) lies not in the ex parte character of the proceeding, but in the functional quality of the judicial judgment being exercised. Both the PACER and CJA application processes call for the district court to apply established law to the facts revealed in the petition and in the court’s own investigation of the matter. Both situations differ from the clerkship application process, which turns on the judge’s personal conception of what sort of clerk will best serve the judge’s needs. One can easily conclude that the ministerial or administrative work of hiring a law clerk lies outside the scope of the judge’s judicial jurisdiction and outside the scope of appellate review. But that need not imply that the district judge’s exercise of non-contentious jurisdiction should similarly evade appellate review.

c. The Classification Debate in Printz v. United States

The conflicting views of the Justices in Printz present a slightly different perspective on the classification of judicial and administrative work, but one on which non-contentious jurisdiction may shed some light. Holding that Congress may not commandeer state officials to administer a federal law requiring background checks for firearm purchases,587 Printz was a decision about federalism. But it occasioned an exchange between Justice Scalia, writing for the majority, and Justice Stevens, in dissent, about the nature of functions previously assigned to state courts by the federal government.588 In refuting an argument by the government that the First Congress had assigned administrative tasks, such as the naturalization of citizens, to state courts, Justice Scalia characterized the task of “determining whether applicants for citizenship met the requisite qualifications” for naturalization under federal law as “quintessentially adjudicative,” though he added the unexplained caveat that “the line between [executive and judicial functions in the context of state judiciaries] is not necessarily identical with the line established by the Constitution for federal separation-of-power purposes.”589 In response, Justice Stevens argued that the “evaluation of applications for citizenship . . . [is] hard to characterize as the sort of adversarial proceedings to which common-law courts are accustomed” and that “[a]ctivities of this sort, although they may bear some resemblance to traditional common-law adjudication, are far afield from the classical model of adversarial litigation.”590 Although neither Justice attempted to connect his discussion of the distinction between administrative and judicial functions with the judicial power granted by Article III—Justice Scalia was, indeed, careful to avoid any such connection591—an animating feature of the arguments of both Justices was that such a distinction existed and was significant for defining the scope of judicial activity.592

We do not believe that one can draw a sharp boundary line between the two functions. The example on which the Justices focused, naturalization proceedings,593 could rationally be assigned to judicial or administrative tribunals. From the perspective of a theory of non-contentious jurisdiction, the key lies in determining whether the court must exercise judicial judgment, or what Justice Scalia characterized as the “adjudicative” functions of “determining whether applicants for citizenship met the requisite qualifications.”594 As long as the determination calls for the exercise of such judgment and the other elements of non-contentious jurisdiction are present, federal courts can do the work, and the classification decision ultimately belongs to Congress.


History plays an important but contested role in debates over the justiciability rules derived from Article III. Many scholars, following the lead of Justice Felix Frankfurter,595 focus on judicial practice in the early Republic for insight into the Framers’ conception of the judicial power. The canonical treatment of federal justiciability law in Hart and Wechsler’s famous casebook, for example, prominently featured the lessons of such historical landmarks as Hayburn’s Case, the Correspondence of the Justices, and the practice of naturalization later validated in Tutun.596 Later scholars have continued to emphasize early practice, both because it sheds light on the original understanding of Article III and because it may represent an early liquidation of the meaning of the debatable terms of Article III.597 Even if one does not subscribe to the so-called First Congress canon of construction, which holds that practices adopted in the immediate aftermath of the ratification have special force as early explications of constitutional meaning,598 a thorough knowledge of historical practice may have value. After all, history may help to explain how contested practices arose and why they remain a part of our constitutional tradition centuries later, long after their original justification has slipped from view.

Some scholars take the position that the early willingness of the federal courts to take on ex parte chores, such as naturalization petitions, does not deserve much weight in constitutional analysis.599 One form of the argument appears in the work of Michael Morley, who argues against the power of Article III courts to entertain uncontested applications for the entry of consent decrees.600 For Morley, early practice has little to offer a body of constitutional law that did not emerge in the decisional law of the Supreme Court until the twentieth century.601 Many scholars take a similar view, dismissing early practice as isolated or anomalous, or suggesting that early practice was a pragmatic adaptation to conditions in the early Republic but has few lessons to teach us about justiciability law today.602 A subtler version of the argument appears in the latest edition of the Hart and Wechsler casebook. After calling attention to the practice of naturalization upheld in Tutun and questioning its legitimacy, the authors ask, “When, if ever, should a deep historical pedigree sustain a practice if the Court would otherwise find it unconstitutional?”603 One can see this question as an effort to downplay the significance of early precedents on the grounds that they are unprincipled, anomalous, or products of a different age. On this view, case-or-controversy rules that the Court has promulgated in the last several decades respond to practical problems of administrative governance—problems that may not have been present in the early days.

We do not question the pragmatic instinct that underlies these arguments. The meaning of the Constitution will inevitably change, and a deep historical pedigree, standing alone, does not provide an airtight assurance of constitutional validity. We simply disagree on the point that ex parte practice should be consigned to the dustbin of history’s anomalies. Non-contentious jurisdiction began in ancient Rome; was received into the civil- and canon-law procedure of Europe and England; took root in the courts of admiralty and equity; and made its way across the Atlantic to the new world. Early Congresses included non-contentious matters among those they assigned to the federal courts, and early definitions of the term “case” in Article III were phrased in terms sufficiently broad to encompass ex parte proceedings. The now-familiar linkage between “cases” and “controversies” was apparently proposed in the late nineteenth century as a way to introduce an adverse-party norm into language that had not been previously read to convey such a meaning. The Court has invariably upheld individual instances of non-contentious jurisdiction against challenges predicated on the absence of adverse parties. And the construct of non-contentious jurisdiction can help to solve a surprisingly broad range of puzzles in the management of the federal judicial power today. We think, in brief, that the practice of non-contentious jurisdiction remains a vital feature of the daily work of the Article III courts.

We do not mean to praise all of the practices outlined in this Article; indeed, we believe Congress should think twice before expanding non-contentious jurisdiction, and federal courts might improve the way they manage their non-contentious work. But we do suggest that the theory of non-contentious jurisdiction explains much that was previously inexplicable or anomalous. Non-contentious jurisdiction, properly understood, enables the federal courts to entertain a range of uncontested and ex parte applications for the grant of a legal right or the entry of a judgment or as a threshold requirement before the government may institute certain proceedings against an individual. Properly limited, non-contentious jurisdiction should not pose a threat to the dominant role of the federal courts in resolving contested disputes and explicating the meaning of federal law. Indeed, by calling for the recognition of both contentious and non-contentious jurisdiction, we have expressed a preference for the preservation of many of the adverse-party rules that emerged in the last century. We have also suggested that federal courts should proceed cautiously when asked to make bold pronouncements in the context of an ex parte submission. Still, the federal courts provide a unique institution among administrative bodies; their independent judges offer a more meaningful check on executive branch activities than courts created within and beholden to the administrative state. While Congress should not assign administrative matters to the Article III judiciary that the agencies can handle more efficiently, we think Congress retains broad power to define the sort of “cases” that will make up the work of the lower federal courts. On accepting such non-contentious assignments as a legitimate part of the judicial power, moreover, federal courts may come to view their inquisitorial duties as an important complement to their role in dispute resolution on the contentious side of their dockets.