Familiar rules limit the federal courts to the adjudication of claims by plaintiffs who seek redress for injuries inflicted by one or more adverse parties. The U.S. Supreme Court has based these requirements of standing and party adverseness on the “case-or-controversy” language of Article III and the history of judicial practice in England, but neither text nor history can bear the weight of justification. While a “controversy” in Article III entails a dispute between parties aligned as specified, new research reveals that the term “case” extends more broadly to encompass what Roman and civilian jurists referred to as noncontentious jurisdiction. Indeed, a variety of noncontentious proceedings—including applications for naturalized citizenship, petitions for the issuance of search warrants, and pension claims—were promptly assigned to the Article III judiciary in the 1790s, and similar matters have been a feature of federal judicial cognizance ever since.
The power of federal courts to exercise noncontentious jurisdiction in “cases” governed by federal law undermines the court’s textual and historical claim that federal courts cannot adjudicate in the absence of injured plaintiffs and adverse parties. Petitions for naturalization, for example, did not seek redress for an injury and did not entail joinder of an opposing party. But the Court can use a more historically defensible construct—that of the litigable interest—to regulate access to federal dockets. Indeed, the eighteenth-century practice of the Scottish Court of Session offers a useful historical model for such a litigable-interest construct. The Court of Session imposed standing rules for private litigants but allowed individuals to vindicate the public interest through an actio popularis or public action. Designed to avoid a defect of justice, the Scottish conception of the litigable interest coheres with early definitions of the term “case” in the United States and lays the foundation for a more candid and historically accurate approach to issues of standing—one that would recognize broader power in Congress to assign new work to the federal courts.Pfander-65-1