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Publication Date

2013

Abstract

Agencies of the United States often find themselves on
opposite sides of the "v. " in disputes ranging from alleged
unfair labor practices in federal agencies, to competing
statutory interpretations, to run-of-the mill squabbles over
money. Yet Article III's case-or-controversy requirement

includes--at a minimum-adverse parties and standing.
Courts have disagreed with one another over the extent to
which litigation between the sovereign and itself meets
Article III standards. Despite the volume of scholarship
on Article III standing, relatively little attention has been
paid to Article III's requirement of adverse parties in
general, or the justiciability of intrabranch litigation in
particular.
Looking at both historical practice and modern Article
III case law and scholarship,this Article finds meaningful
jurisdictional limits on interagency litigation. When the
only litigants in a case assert the sovereign prerogatives of
the United States, there is no case or controversy within
the meaning of Article III. This conclusion is supported by
200 years of case law and follows from what it means
when the "United States" invokes its courts.

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