Evaluating Defenses of a Requirement of Adverse Interests

Abstract

This chapter responds to scholars who have sought to defend a modified Article III adverse-party requirement by redefining that requirement in terms of the underlying adverse interests of potential parties to litigation. Such an adverse interest construct fares poorly as an account of the language and history of Article III and fails to cohere with the practice of federal courts during the antebellum period and with the way antebellum jurists explained that practice to the world. Nor does the adverse interest construct advance the normative goals that have sometimes been seen as justifying a requirement of adversary contestation. Lacking a clear basis in text, history, and normative considerations, the adverse-interest account does a poor job of making sense of Article III.