Adjudication Outside Article III

50 Pages Posted: 27 Jun 2018

See all articles by William Baude

William Baude

University of Chicago - Law School

Date Written: June 12, 2018


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, non-judicial adjudication of public rights, and military tribunals. The question is why.

This article attempts to provide an answer. By uniting Article III and the separation of powers principles underlying the Due Process Clause, this article argues that there are three (and only three) forms of adjudication permissible outside of Article III: (1) Those that exercise the “judicial power” of some other government; (2) those that do not authorize deprivations of life, liberty, or property; and (3) those that are for some reason an exception to normal due process requirements.

Territorial courts (like state courts) fall into the first category. Public rights adjudication falls into the second. Military tribunals fall into the third. Taken together, these categories fit into the text and structure of the Constitution and provide an explanation for our longest standing practices. They point towards limiting principles, and provide answers to many structural and procedural questions about non-Article III adjudication, including the question of appellate jurisdiction currently pending before the Supreme Court in Dalmazzi v. United States.

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 (June 12, 2018). 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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