Federal Courts: Art. III(1), Art. I(8), Art. IV(3)(2), Art. II(2)/I(8)(3), and Art. II(1) Adjudication

2021. Georgetown Law Faculty Publications and Other Works. 2373.

Catholic University Law Review, Forthcoming

63 Pages Posted: 19 Apr 2021 Last revised: 17 May 2021

See all articles by Laura K. Donohue

Laura K. Donohue

Georgetown University Law Center

Jeremy McCabe

Georgetown University Law Center; University of Washington - School of Law; University of Washington, The Information School, Students

Date Written: April 13, 2021

Abstract

The distinction among the several types of federal courts in the United States has gone almost unremarked in the academic literature. Instead, attention focuses on Article III “constitutional” courts with occasional discussion of how they differ from what are referred to as “non-constitutional” or “legislative” courts. At best, these labels are misleading: all federal courts have a constitutional locus, and most, but not all, federal courts are brought into being via legislation. The binary approach further ignores the full range of federal courts, which are rooted in different constitutional provisions: Art. III(1), Art. I(8); Art. IV(3); Art. II(2)/I(8)(3); and Art. II(1). These distinctions matter for defining jurisdiction and understanding the scope of the authorities—and constitutional protections—that apply. The failure of scholars to take into account the full panoply of the federal judicial system has contributed to inaccurate analyses and cabined the debate. This article takes a significant step forward, providing a conceptual framework for each type of court and delineating, based on their legal and historical underpinning, which adjudicatory bodies in the history of the United States fall within each category. It details the constitutive elements of the courts and their jurisdiction as supported by doctrine, statutory law, and scholarly literature, providing the first, comprehensive taxonomy of federal courts in the United States.

Keywords: Federal courts, Article III courts, Article I courts, territorial courts, military courts, treaty-based courts, courts of occupation, inherent powers

Suggested Citation

K. Donohue, Laura and McCabe, Jeremy, Federal Courts: Art. III(1), Art. I(8), Art. IV(3)(2), Art. II(2)/I(8)(3), and Art. II(1) Adjudication (April 13, 2021). 2021. Georgetown Law Faculty Publications and Other Works. 2373., Catholic University Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3825670 or http://dx.doi.org/10.2139/ssrn.3825670

Laura K. Donohue (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202 662-9282 (Phone)
202 662-9282 (Fax)

Jeremy McCabe

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

University of Washington - School of Law ( email )

University of Washington, The Information School, Students ( email )

Seattle, WA
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
51
Abstract Views
234
rank
471,217
PlumX Metrics