Consenting to Adjudication outside the Article III Courts

By Hessick, F. Andrew | Vanderbilt Law Review, April 2018 | Go to article overview

Consenting to Adjudication outside the Article III Courts


Hessick, F. Andrew, Vanderbilt Law Review


INTRODUCTION

Federal judges are supposed to be independent. Their independence allows them to decide disputes according to the rule of law instead of based on popular pressure.1 Article III of the Constitution protects judicial independence by entitling judges to compensation that cannot be reduced and to hold their offices so long as they maintain good behavior.2

But most federal adjudication occurs outside the Article III courts. Despite Article III's clear directive "vest[ing]" the "judicial power" in the federal courts, the Supreme Court has concluded that Article III courts are not the only ones that can exercise the judicial power. 3 To the contrary, the Court has recognized several exceptions to Article III's exclusive grant of the judicial power to the federal courts,4 concluding that Congress may create other tribunals, commonly referred to as "Article I tribunals," that can adjudicate claims outside Article III.5 For example, Congress may create Article I tribunals to adjudicate claims in the territories, to serve as military tribunals, and to resolve disputes involving so-called "public rights."6 These Article I judges do not enjoy the same salary and tenure guarantees given to Article III judges. They accordingly do not have the same independence as Article III judges.

One of the exceptions to Article III depends on the parties' consent.7 Under this exception, an Article I tribunal can adjudicate a claim that otherwise would be heard by an Article III court if the parties consent to the Article I tribunal's jurisdiction. Two recent decisions have developed this exception. In the first, Commodity Futures Trading Commission v. Schor,8 the Court upheld the ability of the Commodity Futures Trading Commission ("CFTC") to make findings of fact and law based in part on the consent of the parties. In the second, Wellness International Network, Ltd. v. Sharif, the Court expanded the role of consent by concluding that the parties' consent authorizes an Article I tribunal not only to make factual and legal findings but also to enter an enforceable judgment, 9 the core of the "judicial power."10

Today, the consent exception confers vast power on Article I tribunals. It provides the basis for tens of thousands of civil and criminal adjudications conducted every year by bankruptcy judges and federal magistrate judges.11 And it authorizes an Article I tribunal to hear potentially any type of claim that arises anywhere in the United States.

This Article argues that the Supreme Court made a wrong turn in recognizing the consent exception. Article III assigns the judicial power to the federal courts, and nothing in the Constitution allows the parties to reallocate that power. The exception is also historically unwarranted. Early American courts followed the rule that the consent of the parties could not confer the judicial power on a tribunal; only the law could confer the judicial power. That rule has ancient roots tracing back through at least the seventeenth century.12

Moreover, the consent of the parties does not eliminate separation-of-powers concerns. Although protecting the parties' interests in an impartial adjudicator is one reason for the Article III judiciary, it is not the only reason. An independent judiciary also promotes larger interests held by the public. These interests include not only protecting individuals who are indirectly affected by judicial rulings but also society's broader interests in living under a government that adjudicates based on the rule of law instead of political considerations, maintaining a system of adjudication that provides adequate remedies for violations of rights, and preventing imprudent government actions by requiring various government institutions with different interests to evaluate those actions. Allowing the parties to choose to litigate before Article I tribunals that need not have similar guarantees of independence undermines these public values. …

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