Another of the papers held at the Works-in-Progress Conference at the Originalism Center at the University of San Diego this past weekend was The Contested History of Article III’s Case-or-Controversy by James Pfander of Northwestern University Law School. Pfander’s paper provides evidence that early Congresses authorized and courts allowed lawsuits that do not seem to satisfy the modern Article III doctrine in terms of injury in fact and adverseness of the parties. (While Pfander’s paper is not yet available online, a longer related paper is.)
One of Pfander’s examples is the naturalization proceeding that involved an action by an individual in court seeking citizenship. The government was not a party to the proceeding. According to Pfander, this proceeding does not involve an injury in fact and does not involve adverseness. It does not involve injury in fact, because the applicant for citizenship has not been denied his citizenship by the government. He is simply applying for it in court. It does not involve adverseness because the government has not taken an adverse position to the applicant for citizenship. The government is not involved. Other noncontentious proceedings included administrative proceedings in bankruptcy jurisdiction and ex parte warrant applications.