Adjudication Outside Article III

71 Pages Posted: 27 Jun 2018 Last revised: 12 Mar 2020

See all articles by William Baude

William Baude

University of Chicago - Law School

Date Written: March 10, 2020


Article III requires federal courts that 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 it is 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.

Note: This is a draft. Comments are especially welcome.

Keywords: Article III, Legislative Courts, Due Process, Territorial Courts, Military Courts, Public Rights, Judicial Power

Suggested Citation

Baude, William, Adjudication Outside Article III (March 10, 2020). 133 Harvard Law Review 1511 (2020), Available at SSRN: or

William Baude (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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