Notice & Comment

Consenting to Adjudication Outside the Article III Courts

A lot of Supreme Court cases involve the meaning of Article III. Most of those cases address whether the Article III courts have jurisdiction over a particular claim. But a handful of the Article III cases focuses on the converse question—whether a tribunal outside of Article III can adjudicate a claim.

Article III “vest[s]” the judicial power in the various federal courts. The text suggests that only federal courts may exercise the judicial power, but federal courts have not read Article III literally. Instead, they have recognized a number of exceptions to Article III. These exceptions permit judges who do not enjoy the same salary and tenure guarantees given to Article III judges to adjudicate disputes.

One of these exception to Article III depends on the consent of the parties. Under this consent exception, a non-Article III tribunal can adjudicate a claim that otherwise would be heard by an Article III court if the parties consent to the tribunal’s jurisdiction.

Over the years, the Court has tinkered with the scope of the exception. In its most recent foray into the exception, the Court concluded in Wellness Int’l Network, Ltd. v. Sharif that a bankruptcy court could adjudicate various claims based on the consent of the parties. The exception is again before the Court this term in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, which presents the question whether the Patent and Trademark Office can adjudicate the validity of patents. (To be fair, the consent exception plays a secondary role in Oil States; the case focuses more on the “public rights” exception, a different exception to Article III.)

The exception is quite important. It provides the justification for thousands of adjudications by magistrate and bankruptcy judges each year. But I have serious doubts about this consent exception—serious enough that I’ve just written a whole article about it called “Consenting to Adjudication Outside the Article III Courts.” It argues that permitting Article I tribunals to adjudicate based on the parties’ consent is inconsistent with the text of the Constitution and historical practice, and it undermines both the separation of powers and federalism.

I’d love any comments people might have on my draft.


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