Federalism, Private Rights, and Article III Adjudication

66 Pages Posted: 16 Feb 2022 Last revised: 6 Dec 2022

See all articles by John M. Golden

John M. Golden

University of Texas at Austin - School of Law

Thomas H. Lee

Fordham University School of Law

Date Written: 2022


This Article sheds new light on the private rights/public rights distinction used by the Supreme Court to assess the extent to which the United States Constitution permits adjudication by a non-Article III federal tribunal. State courts have traditionally been the primary deciders of lawsuits over private rights—historically defined as suits regarding “the liability of one individual to another under the law as defined.” If Congress could limitlessly assign adjudication of private rights cases to federal officials lacking the life tenure and salary protections of Article III judges, the political branches of the federal government would enjoy vastly expanded authority to encroach on state courts’ traditional authority to decide common-law and equity cases between individuals. We argue that such vast congressional power is inconsistent with the limits on federal authority in a constitutional scheme in which state courts have traditionally dominated the adjudication of ordinary private disputes and in which Congress’s power of direct taxation and ability to create lower federal courts were hard-won concessions. Article III’s implicit constraints on congressional power to confer private rights cases on non-Article III federal tribunals effectively checks federal power to supplant state-court adjudication by requiring that adjudicative power over such cases go substantially to Article III courts, bodies constitutionally insulated from congressional control. The private rights/public rights distinction thus operationalizes a principle of constitutional federalism through the mechanism of federal-level separation of powers. Article III’s federalism underlay explains the Supreme Court’s special concern with non-Article III adjudication of state-law claims and of questions of “jurisdictional” fact—two doctrinal positions that have puzzled commentators focused on the threat that proliferation of non-Article III tribunals poses to the power of Article III courts, rather than to the power of state courts and local juries. By showing how federalism is an important part of the non-Article III adjudication puzzle, this Article complements prior accounts that focus solely on concerns with the separation powers and individual liberty.

Keywords: Article III, federalism, non-Article III adjudication, non-Article III tribunal, private right, public right, public rights doctrine, jury right, arbitration

JEL Classification: K23, K41

Suggested Citation

Golden, John M. and Lee, Thomas H., Federalism, Private Rights, and Article III Adjudication (2022). 108 Va. L. Rev. 1547 (2022), Fordham Law Legal Studies Research Paper No. 4036008, U of Texas Law, Public Law Research Paper , Available at SSRN: https://ssrn.com/abstract=4036008

John M. Golden (Contact Author)

University of Texas at Austin - School of Law ( email )

School of Law
727 East Dean Keeton Street
Austin, TX 78705
United States
(512) 232-1469 (Phone)

Thomas H. Lee

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
212.636.6728 (Phone)

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics