Non-Contentious Jurisdiction and Consent Decrees: A Reply to Professors Pfander & Birk

15 Pages Posted: 5 Aug 2015

See all articles by Michael Morley

Michael Morley

Florida State University - College of Law

Date Written: August 3, 2015


Professors James E. Pfander’s and Daniel D. Birk’s bold reinterpretation of Article III’s justiciability requirements in their recent article, "Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction," 124 YALE L.J. 1346 (2015), challenges the widely accepted principle that federal courts may adjudicate only live disputes between adverse parties. Pfander and Birk provide a fascinating analysis of the various roles that federal judges and courts have played throughout American history, and offer an elegant reinterpretation of the distinction between "cases" and "controversies" under Article III. While many of their conclusions are sound, this Response contends that their proposed reinterpretation of Article III goes too far. Even assuming that Article III grants federal courts non-contentious jurisdiction to hear certain ex parte matters, it should not extend so far as to allow federal courts to become or remain involved in matters where all interested parties affirmatively agree and seek the same relief. In other words, despite their historical pedigree, Article III should not be read as conferring non-contentious jurisdiction upon federal courts to enter consent decrees. This Response begins by questioning the utility of Pfander and Birk’s primary methodology — a largely historical analysis — in the context of Article III. It goes on to argue that Pfander and Birk erred in concluding that consent decrees are a valid exercise of the judicial power under Article III. The historical and current practices from which they derive their conclusions are susceptible to an alternate analysis: for a case or controversy to exist, the interested parties must not have not reached a complete accord on all issues in a legal dispute. Indeed, even if one accepts Pfander and Birk’s arguments, consent decrees are not justiciable under their own proposed conception of non-contentious jurisdiction. This Response concludes by demonstrating that their proposed distinction between “cases” and “controversies” can have profound effects on Supreme Court jurisdiction that may, in themselves, constitute a basis for rejecting or modifying their proposal.

Keywords: Jurisdiction, federal courts, justiciability, case or controvery, adverseness, adverse parties, non-contentious jurisdiction, originalism, Article III

Suggested Citation

Morley, Michael, Non-Contentious Jurisdiction and Consent Decrees: A Reply to Professors Pfander & Birk (August 3, 2015). Available at SSRN: or

Michael Morley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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