Earlier this month I published an article in the Harvard Law Review called Adjudication Outside Article III. Some of my articles come together pretty quickly, but this one took me almost five years from start to finish, so it’s a shame that nobody will ever read it.
In any event, here is the abstract:
Article III requires federal judges who exercise federal jurisdiction to be given life tenure and undiminished compensation, limiting Congress’s ability to influence the judiciary. But from the beginning, we have accepted certain forms of adjudication outside Article III — state courts, most obviously, but also territorial courts, administrative adjudication of public rights, and military tribunals. The question is why.
This Article attempts to provide an answer. It argues that it is a mistake to focus on the act of adjudication itself; adversary presentation about the application of law to fact is simply a procedure, and not a procedure uniquely limited to Article III courts. Instead, the constitutional question is one of government power. What kind of power has the tribunal been vested with, and what is it trying to do with that power?With this framework in view, the structure and scope of non–Article III adjudication becomes clearer. Some courts exercise the judicial power of some other government. This is why territorial courts and state courts are constitutional. Some bodies exercise executive power, subject to the constraints reflected by the Due Process Clause. This is why administrative adjudication of public rights and military trials are constitutional. Some exercise no governmental power and can proceed only as an adjunct to another entity or on the basis of consent. This is the only basis on which magistrate judges and bankruptcy judges can proceed and may render some of their current behavior unconstitutional.
You can read the whole thing here.
And if you don’t want to read a long law review article, I tried to break down the five core contributions of the article into five posts at the Volokh Conspiracy this week:
And if you don’t want to read at all, I also discussed the article in a half-hour podcast with Adam White, who runs the C. Boyden Grey Center for the Administrative State, at Scalia/George Mason. If you want the movie rights, let me know. They’re cheap.