As Justice Scalia so candidly put it in describing the Supreme Court’s approach to non-Article III courts in Stern v. Marshall, “[t]he sheer surfeit of factors that the Court was required to consider in this case should arouse the suspicion that something is seriously amiss with our jurisprudence in this area.” Although that quote arose in a case concerning the constitutional limits on the adjudicatory powers of bankruptcy courts, the Court’s 2011 decision in Stern has had a far broader effect, provoking new questions about the limits on the powers of federal magistrates and other forums for non-Article III adjudication. In addition, the federal courts are also in the midst of grappling with new and unprecedented questions concerning use of non-Article III courts in criminal cases, as well—including the power of courts-martial to try civilian contractors and the power of military commissions to try offenses not recognized under international law. This panel will attempt to take a step back from these recent controversies to ask broader questions about the role of (and limits on) non-Article III courts. Whether or not the Court has offered coherent principles to guide resolution of these questions, do such principles exist? If so, what criteria should govern the allocation of judicial power between Article III and non-Article III tribunals going forward? Ultimately, what might we learn, from both present and past disputes over non-Article III adjudication, about the underlying role and significance of the Article III courts more generally?
Business Meeting at Program Conclusion.