Consenting to Adjudication Outside the Article III Courts

38 Pages Posted: 28 Aug 2017

See all articles by F. Andrew Hessick

F. Andrew Hessick

University of North Carolina School of Law

Date Written: August 25, 2017

Abstract

Article III confers the judicial power on the federal courts, and it provides the judges of those courts with life tenure and salary guarantees to ensure that they decide disputes according to law instead of popular pressure. Despite this careful arrangement, the Court has not restricted the judicial power to the Article III courts. Instead, it has held that Article I tribunals—whose judges do not enjoy the salary and tenure guarantees provided by Article III—may adjudicate disputes if the parties consent to the tribunals’ jurisdiction. This consent exception provides the basis for thousands of adjudications by Article I judges each year. This Article challenges the consent exception. It argues that the consent of the parties should not be a basis for adjudication before an Article I tribunal. As it explains, permitting Article I tribunals to adjudicate based on the parties’ consent is inconsistent with the text of the Constitution and historical practice, and it undermines both the separation of powers and federalism.

Keywords: Federal Courts, Article III, Constitutional Law, Administrative Law, Adjudication

Suggested Citation

Hessick, F. Andrew, Consenting to Adjudication Outside the Article III Courts (August 25, 2017). Vanderbilt Law Review, Forthcoming, UNC Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=3026111

F. Andrew Hessick (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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