Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction
88 Pages Posted: 16 Dec 2014
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Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction
Date Written: December 3, 2014
Abstract
The jurisprudence of Article III has so far failed to confront a fundamental tension in the theory of adverse parties. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom traces her injury to the other’s conduct. On the other hand, Congress has repeatedly conferred power on the federal courts to hear ex parte proceedings that feature no opponent at all. Such proceedings call upon the federal courts to play an inquisitorial role that seems hard to square with the nation’s commitment to an adversary system.
In this Article, we offer a catalog of ex parte proceedings and the first general theory of how those proceedings fit within our largely adversarial federal judicial system. We argue that Article III embraces two kinds of judicial power: 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 in the absence of an adverse opponent; it was incorporated into equity, admiralty, and ecclesiastical practice and promptly introduced into the federal judicial practice of the early Republic. Non-contentious jurisdiction encompasses such familiar federal proceedings as applications for naturalization, administrative proceedings in bankruptcy jurisdiction, guilty pleas and ex parte warrant applications, and inquisitorial proceedings in connection with settlement agreements and the entry of default judgments.
Apart from casting doubt on the view that Article III embeds an unyielding constitutional requirement of adverse parties, the construct of non-contentious jurisdiction requires that we rethink Article III’s case-or-controversy requirement and reconsider the injury-in-fact test of standing doctrine as well as the underpinnings of such judicial power standards as Hayburn’s Case and Tutun v. United States. Finally, by offering a theoretical account of practices that many view as aberrations in the exercise of federal judicial power, our examination of non-contentious jurisdiction better situates Article III within America’s broader legal inheritance.
Keywords: Article III, adversarial, American, ex parte, jurisprudence, Federal, Non-contentious jurisdiction, case-or-controversy requirement, injury-in-fact
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