Reading good case law is good for your soul. And these articles are excellent. Delicious, nutritious and invigorating (with just enough pepper to be interesting), Pfander, Birk and Woolhandler served a chicken soup for the soul of Article III. More often than I probably should admit on the Internet, consuming law is an unpleasant and sometimes terrible task for me. I hope this perspective will not be expressed in my JOTWELL articles, but this is mainly because the purpose of this forum is to identify and discuss the science that we particularly appreciate. But isn`t it particularly repugnant when lawyers disagree in an unpleasant way? And isn`t this inconvenience often an indicator of the distortion of views with which a scholar disagrees? (An example from his personal experience as a student editor of Law Review fifteen years ago is Ronald Dworkin`s “Book Review” of a jules Coleman book on legal pragmatism.) I must confess that I didn`t pay enough attention to the previous Pfander/Birk article – a 129-page review of the days leading up to the main legal overviews worked together to impose word limits. But if I can manage those last thirty pages, so can you. And you should read it with all conscious speed. Like the cake competition to which legal practice is sometimes compared, the reward for consuming this legal scholarship will be more jurisprudence.
But unlike excessive cake consumption, consuming this extra purse will provide extra satisfaction instead of indigestion. (These are all proteins, not carbohydrates.) Start with the answer, as some judges do with their pleadings. And then you will be motivated and able to go back and read not only the old Pfander/Birk article, but also Woolhandler`s response, Adverse Interests and Article III, with the attention and care that everyone demands and rewards. Thanks to Pfander and Birk, my answer to the standard question “What`s the difference” in class starts something like this: “Yes, good question. There is a difference between “cases” and “controversies”. “Case” is a broader category than “controversy.” The category of “cases” includes not only civil actions and lawsuits, but also other legal proceedings leading to a final decision on a court application, including approval of applications for naturalization and applications for the issuance of arrest warrants. Unlike “cases”, which can exist even when only one party is tried, “controversies” require the presence of an opposing party. For all its potential to destabilize existing doctrine, there is something in Pfander and Birk`s view that makes it relatively easy to accept.
The textual distinction between “cases” and “controversies,” they argue, leads to a more fundamental distinction between contested and non-contentious jurisdiction. And non-contentious jurisdiction, they show, has been exercised without controversy by the courts of many other jurisdictions for long periods of time. Pfander and Birk help us recognize something that has been in sight for a very long time – “the judiciary of the United States” includes the power to accept “cases” of non-contentious jurisdiction assigned to the federal judiciary by Congress. Moreover, their distinction between contentious and non-contentious jurisdiction provides a useful lens through which much of what we have taken for granted can be re-examined. Once we see the benefits and pervasiveness of non-contentious jurisdiction in other jurisdictions, the ability of Article III courts to exercise the non-contentious jurisdiction assigned to them by Congress makes great sense, in addition to clarifying the textual distinction between “cases” and “controversies.” For a case to be heard by a federal court, it must be justiciable. One of the prerequisites for legality is adversity, which means that the parties must have genuine competing interests. Article III extends “the judicial power of the United States” to certain “cases” (broadly defined by subject matter) and certain “controversies” (broadly defined by the parties). But why the other words? Does the unmistakable terminology make a difference in the legal sense? Questions along these lines seem to arise every time I teach Article III.
