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Consenting to Adjudication Outside the Article III Courts

Posted by on Wednesday, April 18, 2018 in Articles, Volume 71, Volume 71, Number 3, Volumes.



Article III confers the judicial power on the federal courts, and it provides the judges of those courts with life tenure and salary guarantees to ensure that they decide disputes according to law instead of popular pressure. Despite this careful arrangement, the Supreme Court has not restricted the judicial power to the Article III courts. Instead, it has held that Article I tribunals—whose judges do not enjoy the salary and tenure guarantees provided by Article III—may adjudicate disputes if the parties consent to the tribunals’ jurisdiction. This consent exception provides the basis for thousands of adjudications by Article I judges each year. This Article challenges the consent exception. It argues that the consent of the parties should not be a basis for adjudication before an Article I tribunal. As it explains, 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.


F. Andrew Hessick
Professor of Law, University of North Carolina School of Law; J.D., Yale Law School; B.A., Dartmouth College.