Although Article III of the Constitution vests the federal judicial power in the Article III courts, the Supreme Court has created a patchwork of exceptions permitting non-Article III tribunals to adjudicate various disputes. In doing so, the Court has focused on the separation of powers, concluding that these non-Article III adjudications do not unduly infringe on the judicial power of the Article III courts. But separation of powers is not the only consideration relevant to the lawfulness of non-Article III adjudication. Article I adjudications also implicate federalism. Permitting Article I tribunals threatens the role of state courts by expanding federal judicial power without the constraints of Article III, and Article I tribunals are more likely than state or Article III courts to adjudicate disputes in ways that undermine state interests. This Essay argues that these federalism considerations provide a sounder basis than current doctrine for some of the exceptions to Article III and they suggest ways that the exceptions to Article III should be modified.
F. Andrew Hessick
Federalism Limits on Non-Article III Adjudication,
46 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol46/iss4/3