Non–Article III Federal Tribunals: An Essay on the Relation Between Theory and Practice

Richard H. Fallon, Jr.*

Since the 1980s, the Supreme Court’s decisions involving the permissible uses of non–Article III federal tribunals have repeatedly invoked two competing theories. A “historical-exceptions” or “formalist” model would insist that only Article III judges can exercise federal adjudicative power except in three categories of cases that history marks as exceptional. A rival approach, often labeled “functionalism,” would allow further deviations from the historical norm if they are supported by sound practical justifications and do not threaten the fundamental role of the Article III judiciary within the separation of powers. This Article explores the relationship between theory and practice in explaining why neither the historical-exceptions nor the functionalist paradigm has prevailed entirely over the other despite the vastly greater appeal of the former, when viewed in the abstract, to an increasingly originalist Court.

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© 2024 Richard H. Fallon, Jr.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Story Professor of Law, Harvard Law School.  I am grateful to Aditya Bamzai, John Golden, and Jim Pfander for extremely helpful comments and to Richard Dunn and Krista Stapleford for excellent research assistance.