Notre Dame Law Review

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Ann Woolhandler* & Michael G. Collins**

In Adjudication in the Political Branches, Professor Caleb Nelson provided an influential account of when federal adjudication might take place outside of the Article III courts.[1]  The ability of Congress to place adjudicative matters outside of Article III courts largely depended on whether the matter might be considered one of public or private rights.[2]  Nelson also traced changes over time that undermined the coherence of the traditional public/private right distinction, and recommended returning to the traditional model.[3]  Later writers have attempted either to qualify or refute the existence of the public/private-rights framework by studying particular areas of law that they claim are out of sync with the model.[4]

According to Nelson,private rights requiring Article III involvement were those that belonged to individuals, and they included interests in life, liberty in the sense of freedom from incarceration, and traditional property interests.[5]  For example, a criminal conviction, or a divestiture of title to land, normally required the participation of regular courts.  Private rights also included imposition of nontax liabilities.[6]  By contrast, public rights were those that belonged to the people as a whole, and included “proprietary rights held by government on behalf of the people, such as title to public lands or the ownership of funds in the public treasury” and “servitudes that every member of the body politic could use . . . such as rights to sail on public waters or to use public roads.”[7]  For example, the determination of benefits to be paid from the Treasury (such as military pensions) were public rights that did not require Article III court participation.[8]  Certain questions involving “privileges” (such as a claim to build a bridge across a public waterway or to import foreign goods) could also be determined without the use of regular courts.[9]

Nelson illustrated the public/private division, inter alia, in the distribution of federal land.  Congress established land offices and charged them with applying statutory criteria in the disposition of public lands to individuals.[10]  Dispositions by the land offices did not require regular judicial process, and a party complaining that the land office should have awarded him a federal land patent (title) generally could not obtain review of the office’s decisions in the courts.[11]  Once the land office granted a title to an individual, however, the title was vested property and the government could not seek to divest the title without a court determination.[12]  Private-rights determinations in the regular courts, moreover, generally required de novo review of both fact and law.[13]

With the advent of more federal agencies in the late nineteenth century, the public/private distinction continued to hold sway.  Leeway to operate with lessened judicial involvement was allowed to the Interstate Commerce Commission (ICC) in making prospective orders, which were on the public-rights side.[14]  On the other hand, the Supreme Court held that if a railroad alleged that Commission-set rates were confiscatory in that they failed to provide a reasonable return on property devoted to the public service, de novo judicial review of law and fact was required.[15]  Backward-looking claims for monetary relief also required substantial regular court involvement.[16]

Matters changed, however, with Crowell v. Benson, a case in which a claimant sought compensation under the Longshoremen’s and Harbor Workers’ Compensation Act[17] from a private employer.[18]  The employer asserted a private right to avoid liability under the Act.[19]  The Court nevertheless held that—putting aside certain constitutional facts—the agency’s fact-findings would be upheld if “supported by evidence [in the administrative record] and within the scope of [its] authority.”[20]  Crowell signified that even matters of private rights might be heard in the first instance in agencies, with deferential review of facts and de novo review of law.[21]

In Getting Public Rights Wrong: The Lost History of the Private Land Claims, Professor Gregory Ablavsky sought to qualify Nelson’s account by his discussion of “private land” claims—those in which a person claimed to have acquired an interest in land from a sovereign preceding the United States’ acquisition of the territory.[22]  In Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, Professor Thomas Merrill sought to undermine a public/private-rights distinction by focusing on ICC cases that preceded Crowell.[23]  Both scholars claimed that private rights had been early subject to non–Article III adjudication.[24]

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© 2024 Ann Woolhandler & Michael G. Collins.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*William Minor Lile Professor of Law, University of Virginia.

**Joseph M. Hartfield Professor of Law, University of Virginia.

[1]Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 564 (2007).

[2]Id. at 559, 561–73, 577–82.

[3]See, e.g., id. at 602–05, 620–24.

[4]See, e.g., Gregory Ablavsky, Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277 (2022); Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939 (2011); cf. Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288, 1305, 1313 (2021) (discussing delegation of certain rulemaking powers of taxation as involving private rights).

[5]Nelson, supra note 1, at 563, 567.

[6]See id. at 588–90.

[7]Id. at 566.

[8]Id. at 582–83.  Nelson characterized pensions as “privileges,” id. at 584, 583–84, which this discussion folds into public rights.

[9]See id. at 567–68, 570–71, 580.  The legislature could structure privileges to operate like private rights, but “they were not understood to vest in private individuals in the same way as core private rights.”  Id. at 568.

[10]Id. at 577.

[11]See id. at 577, 594.

[12]Id. at 578.

[13]Id. at 590–91.

[14]See id. at 594–95.

[15]Id. at 597.

[16]Id. at 598.

[17]Longshoremen’s and Harbor Workers’ Compensation Act, ch. 509, § 3(a), 44 Stat. 1424, 1426 (1927).

[18]Crowell v. Benson, 285 U.S. 22, 36 (1932).

[19]Id. at 37.

[20]Crowell, 285 U.S. at 46; see also Nelson, supra note 1, at 599–600.  Constitutional or jurisdictional facts would receive de novo review.  See Crowell, 285 U.S. at 56–57.  In addition, the district court was directed to determine those facts on its own record.  Id. at 64.

[21]Nelson, supra note 1, at 600.

[22]Ablavsky, supra note 4, at 284–85.

[23]See Merrill, supra note 4, at 986.

[24]See id. at 987; Ablavsky, supra note 4, at 347.it, it obviously was hamstrung by precedent in a way we, thankfully, are not.