Reconciling Objections to Adjudications Before Agencies and Other Non-Article III Judicial Officials with the Finality Principle

13 Pages Posted: 23 Sep 2022 Last revised: 30 Nov 2022

Date Written: September 20, 2022

Abstract

In the upcoming term, the Supreme Court will hear argument in Cochran v. SEC, in which the en banc Fifth Circuit departed from its sister circuits to hold that federal courts may entertain constitutional challenges to agency structure even when administrative proceedings are pending. In the Essay, I argue that Cochran was wrongly decided, critiquing that court’s reasoning as well as academic support for its stance. To stake out that position, I compare judicial review of challenges to agency structure with appellate review over analogous challenges to federal court orders requiring arbitration or appointing masters and magistrates. In light of the final judgment rule, no appeal as of right is allowed to challenges of references to nonArticle III adjudicators, despite the costs and time involved, and despite the fact that the nonArticle III adjudicators, like administrative agencies, lack the power to grant the relief sought. Congress rather has directed that all claims be raised together on appeal after a final judgment has been entered. I conclude that the concerns for finality and efficiency that underlie the final judgment rule strongly militate for holding off judicial review until the administrative agency concludes its adjudication.

Suggested Citation

Krent, Harold J., Reconciling Objections to Adjudications Before Agencies and Other Non-Article III Judicial Officials with the Finality Principle (September 20, 2022). Indiana Law Supplement, Available at SSRN: https://ssrn.com/abstract=4224747 or http://dx.doi.org/10.2139/ssrn.4224747

Harold J. Krent (Contact Author)

Chicago-Kent College of Law ( email )

565 West Adams St.
Chicago, IL 60661
United States
312-906-5397 (Phone)
312-906-5280 (Fax)

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

Paper statistics

Downloads
29
Abstract Views
195
PlumX Metrics