Article III Judicial power, the Adverse-Party requirement, and Non-Contentious Jurisdiction

James E. Pfander, Daniel D. Birk

Research output: Contribution to journalArticlepeer-review

20 Scopus citations


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 ears 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 “noncontentious” 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 judicia 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.

Original languageEnglish (US)
Pages (from-to)1346-1474
Number of pages129
JournalYale Law Journal
Issue number5
StatePublished - Mar 1 2015

ASJC Scopus subject areas

  • Law


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