Copyright 2017 by Ann Woolhandler Printed in U.S.A. Vol. 111, No. 4 ADVERSE INTERESTS AND ARTICLE III Ann Woolhandler ABSTRACT—In an important article in the Yale Law Journal, James Pfander and Daniel Birk claim that adverseness is not required by Article III for cases arising under federal law. This Article takes the position that Pfander and Birk have not made the case for reconsidering adversity requirements for Article III cases. Adverseness may be present when there is adversity of legal interests, even when adverse argument is not present. From this perspective, a number of Pfander and Birk’s examples of non- contentious jurisdiction manifested adverseness. In rem-type proceedings such as bankruptcy and prize cases required the determination of adverse interests, in situations where impediments often existed to voluntary extrajudicial resolution. Service or notice in some form was generally provided, which gave opportunities for adverse argument. In addition, the issuance of warrants, while ex parte, involved adverse interests in a context where predeprivation notice would undermine the utility of the proceeding, notice occurred on execution of the warrant, and opportunity for argument was then often available. Pfander and Birk’s examples of pension and naturalization determinations are not as readily characterized as adverse. The Court, however, treated federal judges’ pension determinations as appropriate, if at all, as the work of individual commissioners rather than Article III judges. Naturalization petitions are perhaps Pfander and Birk’s best example of non-contentious jurisdiction, but the Court explicitly approved the practice as appropriate under Article III only after provisions for notice to, and potential appearance by, the United States. AUTHOR—William Minor Lile Professor of Law and Class of 1966 Research Professor of Law, University of Virginia Law School. Thanks to Michael Collins, Rich Hynes, Jonathan Nash, George Rutherglen, and participants in the Emory Law School faculty workshop for their comments. Special thanks to Caleb Nelson for many ideas in this Article. 1025 N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W INTRODUCTION ........................................................................................................... 1026 I. DISTINGUISHING ADVERSE LEGAL INTERESTS AND ADVERSE ADVOCACY ............ 1032 A. Adverse Interests and Adverse Arguments .................................................... 1032 B. Involuntary Termination of Legal Interests Often Requires a Judgment ..... 1033 II. IN REM AND LIMITED-FUND PROCEEDINGS .......................................................... 1036 A. Bankruptcy and Equity Receiverships .......................................................... 1036 B. Prize Jurisdiction .......................................................................................... 1036 C. Remission of Forfeitures ............................................................................... 1041 III. WARRANTS .......................................................................................................... 1043 IV. COLLUSIVE SUITS ................................................................................................. 1047 V. PENSIONS AND CITIZENSHIP .................................................................................. 1055 A. Revolutionary War Pensions ........................................................................ 1056 B. Naturalization ............................................................................................... 1061 CONCLUSION .............................................................................................................. 1065 INTRODUCTION “In every court,” Blackstone wrote in 1768, “there must be at least three constituent parts, . : the actor, or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power.”1 In 1800, Representative John Marshall interpreted the “Case[]”2 in Article III to incorporate a similar set of requirements: “[t]here must be parties to come to court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit.”3 1 3 WILLIAM BLACKSTONE, COMMENTARIES *25; see also 1 EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWES OF ENGLAND 39 (London 1628) (“[I]n everie Judgement there ought to be three persons, Actor, Reus, and Iudex.”); Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L. REV. 1559, 1568 & n.29 (2002) (“For centuries, Anglo-American lawyers have thought that the very existence of most kinds of judicial proceedings depends upon the presence (actual or constructive) of adverse parties.”). 2 U.S. CONST. art. III, § 2. 3 The Honorable John Marshall, Speech Delivered in the House of Representatives, of the United States, on the Resolutions of the Hon. Edward Livingston, Relative to Thomas Nash, Alias Jonathan Robbins (March 7, 1800), in 4 THE PAPERS OF JOHN MARSHALL 82, 96 (Charles T. Cullen ed., 1984) [hereinafter John Marshall Speech]; id. at 95 (“A case in law or equity . was a controversy between parties which had taken a shape for judicial decision.”). 1026 111:1025 (2017) Adverse Interests Numerous Supreme Court decisions reiterate the need for parties with adverse interests who will be bound by the results of the litigation.4 In addition, standing doctrine reflects the need for adverse interests that will be affected by the litigation. Standing requires not only a plaintiff who claims a legally cognizable interest that will be affected by the controversy but also a defendant who has in some sense caused injury to the plaintiff’s interests and can provide redress. The causation may consist in the defendant’s having an adverse legal interest that the plaintiff seeks to diminish or transfer to himself rather than that the defendant necessarily has disturbed the status quo.5 Under existing doctrine, though, the fact that Congress or a state legislature is willing to treat the parties as having sufficient adverse interests does not automatically make it so.6 While several scholars have defended adversity as an Article III requirement and criticized certain types of proceedings as failing to meet 7 8 it, the adversity requirement also has its critics. In an impressive article in 4 See, e.g., United States v. Ferreira, 54 U.S. (13 How.) 40, 46 (1852) (indicating that certain determinations of treaty claims were not cases because, inter alia, the United States was not authorized to appear as a party to oppose the claim); Marye v. Parsons, 114 U.S. 325, 330 (1885) (“[N]o court sits to determine questions of law in thesi. There must be a litigation upon actual transactions between real parties, growing out of a controversy affecting legal or equitable rights as to person or property.”); California v. San Pablo & Tulare R.R. Co., 149 U.S. 308, 314 (1893) (“The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property, which are actually controverted in the particular case before it.”); United States v. Duell, 172 U.S. 576, 588 (1899) (determining that the Court of Appeals of the District of Columbia could review the decision of the Commissioner of Patents, and stating that “the proceeding in the Court of Appeals on an appeal in an interference controversy presents all the features of a civil case, a plaintiff, a defendant and a judge”); Muskrat v. United States, 219 U.S. 346, 361 (1911) (stating that judicial power “is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction”); see also id. at 357 (indicating that a case requires “the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication” (quoting In re Pac. Ry. Comm’n, 32 F. 241, 255 (C.C.N.D. Cal. 1887))). 5 See, e.g., HENRY L. MCCLINTOCK, HANDBOOK OF THE PRINCIPLES OF EQUITY §§ 192–195 (2d ed. 1948) (describing actions to quiet title and to remove a cloud on title); id. § 194, at 523 (“Where adverse possession has given title to the land, the adverse possessor may maintain the suit . [to quiet title] against the holder of record title.”). 6 See Lujan v. Defs. of Wildlife, 504 U.S. 555, 573 (1992) (rejecting the argument that “the injury- in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, self- contained, noninstrumental ‘right’ to have the Executive observe the procedures required by law”); Muskrat, 219 U.S. at 360–63 (dismissing a suit that Congress explicitly authorized to contest the constitutionality of a congressional statute); New Hampshire v. Louisiana, 108 U.S. 76, 91 (1883) (dismissing claims where state legislation authorized the state to sue on behalf of citizens holding bonds of another state, stating that “one State cannot create a controversy with another State, within the meaning of that term as used in the judicial clauses of the Constitution, by assuming the prosecution of debts owing by the other State to its citizens”). 7 See, e.g., Ralph E. Avery, Article III and Title 11: A Constitutional Collision, 12 BANKR. DEV. J. 397, 400 (1996) (arguing that some of the main elements of the bankruptcy code do not comply with 1027 N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W the Yale Law Journal, James Pfander and Daniel Birk claim that adverseness