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19 U. Pa. J. Const. L. Online 1 (2016-2017)

handle is hein.journals/jclon19 and id is 1 raw text is: NON-CONTENTIOUS JURISDICTION AND CONSENT DECREES Michael T Morley* This essay by Professor Michael T Morley is a follow-up to his article published in the print version of the University of Pennsylvania Journal of Constitutional Law, Consent of the Governed or Consent of the Government? The Problems with Consent Decrees in Government-Defendant Cases (16 U. Pa. J. Const. L. 637 (2014)). The article was recently discussed by Professor James E. Pfander and Daniel D. Birk in a Yale Law Journal article, Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction (124 Yale L. J. 1345 (2015)). Pfander and Birk's proposed re-interpretation of Article IIIprovides a new basis for allowing federal courts to issue consent decrees. Building on the author's analysis in Consent of the Governed, this essay explains why requests for consent decrees are non-justiciable under Article III, and Pfander and Birk's thesis unnecessarily overbroad. When parties have reached accord in a lawsuit, they may enter into a settlement agreement-a private contract-to dismiss the case, rather than seeking a consent decree. The author explains that, while Pfander and Birk provide numerous historical examples of federal courts engaging in ex parte, uncontested proceedings, none provides a basis for allowing them to enter binding orders in civil cases where the parties have affirmatively reached an agreement. The author further argues that courts should be cautious in relying on Founding Era practices and precedents in construing Article III, since many early interpretations and applications ofArticle III were either erroneous, or at the very least fundamentally irreconcilable with modern practice. INTRODUCTION In 2014, Volume 16 of the University of Pennsylvania Journal of Con- stitutional Law published Consent of the Governed or Consent of the Gov- ernment? The Problems with Consent Decrees in Government-Defendant Cases.' The article argued that federal courts lack jurisdiction under Arti- cle III to enter consent decrees:2 When parties have reached accord as to the proper disposition of a lawsuit, there is no longer a live controversy for a court to resolve. Rather than entering a consent decree, the court should require the parties to memorialize their un- derstanding in a settlement agreement-i.e., a private contract-and dismiss * Assistant Professor, Barry University School of Law. Climenko Fellow and Lecturer on Law, Harvard Law School, 2012-14; J.D., Yale Law School, 2003; A.B., Princeton University, 2000. Thanks to Jim Pfander and Dan Birk for their generous comments, Briana Halpin for her excep- tional research assistance, and Brenna Stewart for her excellent editorial work. Michael T. Morley, Consent of the Governed or Consent of the Government? The Problems with Consent Decrees in Government-Defendant Cases, 16 U. PA. J. CONST. L. 637 (2014). 2 Id. at 675. 1

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