* Professor of Law, Northwestern University. The author would like to express his thanks
to Yvette Ehr of the class of 1984 at Northwestern University School of Law for her invaluable
research assistance.
1. Karst, FederalJurfdia'ionHaiku, 32 STAN.L REv. 229, 230 (1979).
2. U.S. CoNsT. art. IlL, § I.
DUKE LAW JOURNVAL [Vol. 1983:197
3. Less clear is Congress' authority to limit the Supreme Court's appellate jurisdiction. Al-
though article III, section 2 provides that the Court's appellate jurisdiction is subject to such "Ex-
ceptions, and under such Regulations" as Congress shall make, the scope of this clause has never
been fully defined, and certain commentators have argued that Congress' power is severely re-
stricted. See, ag., Ratner, CongressionalPower Over the Appellate Jusdiction of the Supreme
Court, 109 U. PA. L. Rnv. 157 (1960). See generall, Redish, CongressionalPower to Regulate
Supreme CourtAppellate JurisdictionUnder the Exceptions Clause: An Internaland ExternalEx-
amination, 27 VILL. L. REv. 900 (1982).
4. See, eg., Sheldon v. Sill, 49 U.S. (8 How.) 441, 448-49 (1850). See generally Hart, The
Power of Congressto Linit The JurisdictionofFederalCourts: An Exercisein Dialectic, 66 HARv.
L. REV. 1362 (1953).
5. U.S. CONsT. art. , § 8.
6. Id cL. 18.
7. It should be noted that although article I, section 8 grants Congress the power "To consti-
tute Tribunals inferior to the supreme Court," this power concerns the creation of the inferior
article M courts, rather than legislative courts. See Glidden Co. v. Zdanok, 370 U.S. 530, 543
(1962).
8. See M. REDIsH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL
PowER 35 (1980). It should be noted, however, that although legislative courts will generally be
created pursuant to one of Congress' article I powers, this is not always the case. For example,
Congress' power to create territorial courts is derived from article IV, section 3 of the Constitution,
which provides that "It]he Congress shall have Power to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property belonging to the United States .... "
9. 26 U.S. (1 Pet.) 511 (1828).
10. The facts of Canter, which are of no particular importance for present purposes, are well
described in C. WRIoHT, LAW OF FEDERAL CouRTs 40-41 (4th ed. 1983).
Vol 1983:1971 NORTHERN PIPELINE DECISION
11. As Justice Rehnquist correctly noted in his concurring opinion in Northern Pipeline Con-
str. Co. v. Marathon Pipeline Co., 102 S. Ct. 2858, 2881 (1982), "[t]he cases dealing with the
authority of Congress to create courts other than by use of its power under Art. M do not admit of
easy synthesis."
12. "The jurisdiction with which [legislative courts] are invested, is not a part of that judicial
power which is defined in the 3d article of the Constitution, but is conferred by Congress in the
execution of those general powers which that body possesses over the territories of the United
States." 26 U.S. (I Pet.) at 546.
13. Exparte Bakelite Corp., 279 U.S. 438, 450 (1929).
14. Williams v. United States, 289 U.S. 553, 578-79 (1933).
15. Glidden Co. v. Zdanok, 370 U.S. 530, 549 (1962).
16. See D. CuRiE, FrDEAL JURISDICTION IN A NUTSHELL 37 (1976) (referring to the con-
cept of "inherently judicial, whatever that means)."
17. The word "potential" should be emphasized for, as will be seen, to date such difficulties
have not developed, though perhaps they logically should have. See infra text accompanying
notes 117-44.
18. Currently, there are relatively few so-called "legislative" courts in existence. Basically,
the category includes the territorial courts, the military courts, the courts of the District of Colum-
bia and the Tax Court.
19. To the extent agencies perform only a rulemaking function, there would not seem to be a
problem. See hnfra note 115.
20. See, &g., Mishkin, The Federal"Quesdon"In the District CowlIs, 53 COLUM. L. REv. 157,
157 (1953) ("with the expanding scope of federal legislation, the exercise of power over cases of
this sort constitutes one of the major purposes of a full independent system of national trial
courts").
DUKE L4WJOURNAL [Vol. 1983:197
26. Id at 2878.
27. See i fra text accompanying notes 117-20.
28. See .mpra text accompanying note 1.
29. See Afra text accompanying notes 102-44.
30. See *nfratext accompanying notes 145-62.
31. See *tfra text accompanying notes 36-53.
32. See infra text accompanying notes 75-144.
33. See Tushnet, Invitadon to a Wedding: Some Thoughts on Article IMI and a Problem of
Statutory Interpretation, 60 IowA L. REv. 937, 950-51 (1975). discussed infra at note 144.
34. See infra text accompanying notes 145-62.
35. See ihra text accompanying notes 163-74.
DUKE L4WJOURN4L [Vol. 1983:197
36. The Act established a bankruptcy court in each federal judicial district as an "adjunct" to
the district court. The bankruptcy court judges are appointed for 14-year terms, subject to re-
moval by the local circuit's judicial council on grounds of incompetence, misconduct, neglect of
duty, or disability. Their salaries, set by statute, are subject to adjustment. Though the jurisdic-
tional provision, 28 U.S.C. § 1471(a) (Supp. IV 1980), initially vested jurisdiction in the federal
district courts, in a later section it provides that "[tihe bankruptcy court for the district in which a
case under title I1 [the Bankruptcy title] is commenced shall exercise all of the jurisdiction con-
ferred by this section on the district courts." 28 U.S.C. § 147 1(c) (Supp. IV 1980). See generally
Eisen & Smrtnik, The Banlknptcy Rjorm Act of 1978--An Elevated JudIciary, 28 DE PAUL L.
REv. 1007 (1979).
Justice Brennan in Northern Rpelne described the pre-1978 Act procedure:
Before the Act, federal district courts served as bankruptcy courts and employed a "refe-
ree" system. Bankruptcy proceedings were generally conducted before referees, except
in those instances in which a district court elected to withdraw a case from a refe-
ree.... The referee's final order was appealable to the district court. ... The bank-
ruptcy courts were vested with "summary jurisdiction"-that is, with jurisdiction over
controversies involving property in the actual or constructive possession of the court.
And, with consent, the bankruptcy court also had jurisdiction over some "plenary" mat-
ters--such as disputes involving property in the possession of a third person.
The [1978] Act eliminates the referee system ....
The jurisdiction of the bankruptcy courts created by the Act is much broader than
that exercised under the former referee system. Eliminating the distinction between
"summary" and "plenary" jurisdiction, the Act grants the new courts jurisdiction over all
"civil proceedings arising under title 11 or arising in or relatedto cases under title 11."
102 S. Ct. at 2862 (footnote omitted) (emphasis added by the Court).
37. 28 U.S.C. § 1471(a) (Supp. IV 1980).
38. 102 S. Ct. at 2864.
39. Id at 2880.
40. Id
41. Id at 2882.
42. Id
VoL 1983:1971 NORTHERN PIPELINE DECISION
Brennan's "public rights" doctrine. 102 S. Ct. at 2881-82. See infra notes 97-98 and accompany-
ing text.
56. Because Justice Brennan suggested several distinctions between article I courts and ad-
ministrative agencies, 102 S. CL at 2874-78; see i&fa text accompanying notes 129-3 1,it is possible
that the public-private right dichotomy will not affect the work of these agencies. However, if
those distinctions are untenable, see infra text accompanying notes 132-144, then the viability of
the dichotomy would directly affect the constitutional status of administrative agencies, as well as
that of the legislative courts.
57. 59 U.S. (18 How.) 272 (1855).
58. Id at 284.
59. Id at 284-85.
60. Traditionally, it has been thought that the doctrine ofsare dec/si is at its weakest when
issues of constitutional law are involved. See, ,,g.,Glidden v. Zdanok, 370 U.S. 530, 543 (1962);
State Bd. of Ins. v. Todd Shipyards Corp., 370 U.S. 451, 457 (1962).
61. Nonetheless, Justice Brennan relied heavily on this statement in his Northern Npzefine
,ite1.iau.
DUKE LAW JOURJ?4L [Vol. 1983:197
Joseph Stock Yards Co. v. United States, 298 U.S. 38 (1936). Serious question has also been
raised concerning the viability of the entire Crowell decision. See, e.g., K. DAVIS, ADMINISTRA-
TrVE LAW 539-40 (3d ed. 1972).
78. See supra text at note 2.
79. U.S. Coesr. art. III,§ 1.
80. An example is a challenge to a denial of federal welfare benefits. See Goldberg v. Kelly,
397 U.S. 254 (1970).
81. An example is a cease and desist order issued by the Federal Trade Commission. 15
U.S.C. § 45(b) (Supp. V 1981).
82. See generaly M. REDisH, supra note 8, at 35-51.
Vol 1983:197] NORTHERA PIPELINEDECISION 209-
83. U.S. CONST. art. 1I, § 2. See Mishkin, 2he Federal"Question" in the District Courts, 53
COLUM. L. Rav. 157, 190 (1953).
84. See Williams v. Austrian, 331 U.S. 642 (1947); Schumacher v. Beeler, 293 U.S. 367
(1934).
85. See M. REDIS. supra note 8, at 62-63.
86. 102 S. Ct. at 2871.
87. For a discussion of whether the requirements of article I1may be met by provision for
appellate review in an article Il court, see infra text accompanying notes 171-74.
88. In Northern Poeline, Justice Brennan states that "the public-rights doctrine also draws
upon the ... historical understanding that certain prerogatives were reserved to the political
branches of government," and that "Itihe understanding of [the previous] cases is that the Framers
expected that Congress would be free to commit [adjudication of public rights] completely to non-
judicial executive determination... ." 102 S. Ct. at 2869-70. However, at no point does Bren-
nan cite any historical reference to support these assertions.
89. See, eg., Sager, Supreme Court,1980 Ter."Foreward-ConstitutionalLimitations on Con-
gress'Authority to Regulate the Jurisdictionof the FederalCourts, 95 HARV. L. REy. 17 (1981).
90. THE FEDERALiS No. 47 at 30 (J. Madison) (H. Lodge ed. 1888) (quoted in Northern
Ppeline, 102 S. Ct. at 2864).
DUKE LAW JOURNAL [Vol. 1983:197
101. 102 S.Ct. at 2871. See supra text accompanying notes 49-52.
102. 102 S.Ct. at 2869.
103. Id at 2869-70.
104. This was, in part, the reasoning of the Court in Williams v. United States, 289 U.S. 553
(1933), in which the Court held that the Court of Claims was an article I court. Because Congress
could itself "hear and determine controversies respecting claims against the United States," it was
proper for an article I court to adjudicate such controversies. Id at 580-81. The Court went on,
however, to conclude that because such matters could be given to an article I court, they could not
be given to an article El court. Id at 581. The Court rejected this conclusion in Glidden. 370
U.S. at 549-50.
Vol. 1983:197] NORTHERN PIPELINEDECISION
113. The argument for abandoning the dichotomy is that the need for protecting judicial inde-
pendence from being undermined by the legislative and executive branches is least important in
suits between private individuals involving state-created rights; the interest of the other branches
in the outcome of such cases is considerably less than when the federal government is a party to
the suit, as it is by definition in a "public" rights suit.
114. See infra notes 145-74 and accompanying text.
115. Agencies often perform a rulemaking function which is much more analogous to per-
formance of a legislative task than to the exercise of judicial power.
116. See supra text accompanying notes 55-94.
VoL 1983:197] NORTHERN PIPELINEDECISION
130. For example, orders of the Federal Trade Commission and the Interstate Commerce
Commission become enforceable without judicial action if there is no appeal to an article El
court. See 15 U.S.C. § 45(g) (1976); 49 U.S.C. § 10322(e) (Supp. V. 1980).
131. Orders of the National Labor Relations Board, for example, are not automatically en-
forceable. See NLRB v. Marsh Supermarkets, Inc., 327 F.2d 109, 112 (7th Cir.), cert. denied, 377
U.S. 944 (1963); 29 U.S.C. § 160(e) (1976). ("The Board shall have power to petition any court [of
appeals or district court]... for the enforcement of such order.....
132. Eg., 29 U.S.C. § 160(e) (1976).
133. Eg., NLRB v. Bradford Dyeing Ass'n, 310 U.S. 318, 342-43 (1940).
134. See, ag., Local 13, Detroit Newspaper Printing & Graphic Communications Union v.
NLRB, 598 F.2d 267, 272 (D.C. Cir. 1979).
135. See id; tf. FCC v. RCA Communications, 346 U.S. 86 (1953).
136. In a sense, voluntary compliance is analogous to a losing party's decision not to seek
appellate review of a lower court's order.
218 DUKE LAW JOURNAL [Vol. 1983:197
sic legal and factual findings, and is subject to some level of review in
an article III court.
Justice Brennan purported to find important differences between
review of the findings of administrative agencies by an article III court
1
and article III court review of the findings of the bankruptcy courts. 37
Although administrative findings receive "substantial evidence" re-
view,138 findings of the bankruptcy courts were apparently subjected to
what Justice Brennan deemed "the more deferential 'clearly erroneous'
standard."1 39 But it is arguable that drawing a significant distinction
between the two levels of scrutiny is an all but impossible task,140 and it
is, in any event, questionable whether the distinction should rise to a
constitutional status. More importantly, there is no inherent reason-
either theoretically or practically-why article III court review of legis-
lative court findings could not be performed under the "substantial evi-
dence" test, however that standard is defined. 14 ' Thus, to the extent the
Court's constitutional concern derived from the differences in scope of
review, the constitutional deficiency could have been cured by means
less drastic than invalidation of the bankruptcy courts' jurisdiction. In
short, the possible differences in standards of review provide an inade-
137. Justice Brennan noted that "while orders issued by the agency in Crowell were to be set
aside if 'not supported by the evidence,' the judgments of the bankruptcy courts are apparently
subject to review only under the more deferential 'clearly erroneous' standard." 102 S. Ct. at 2879.
138. The scope-of-review situation is not quite as simple as Justice Brennan implies. Subject
to certain limitations imposed by section 701, section 706 of the Administrative Procedure Act
provides that a reviewing court shall "hold unlawful and set aside agency action, findings, and
conclusions found to be-(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,... (C) in excess of statutory jurisdiction, authority, or limitations, or short
of statutory right; ... (E) unsupported by substantial evidence in a case subject to sections 556
and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute;
or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the
reviewing court." 5 U.S.C. § 706(2) (1976). Section 701 provides that agency action may be "com-
mitted to agency discretion by law," in which case section 706 does not apply. Thus, at times the
scope of judicial review of agency action is greater or less than a "substantial evidence" review.
See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971); NLRB v. Brown, 380 U.S.
278 (1965).
139. 102 S. Ct. at 2879.
140. Professor Davis has written: "The Supreme Court has explained the 'clearly erroneous'
test in language which it would not use to explain the substantial evidence rule.. . ." K. DAvis,
supra note 77, at 528. He asserts that "[A]firm conviction of mistak'i [under 'clearly erroneous'] is
closer to substitution of judgment than a firm conviction of unreasonableness [under 'substantial
evidence']." Id Thus, to the extent the two standards differ, Professor Davis apparently believes
that "clearly erroneous" may actually provide a stricter standard of review than that imposed
under "substantial evidence."
141. Although Justice Brennan determined that review of bankruptcy court decisions was
under a "clearly erroneous" standard, that standard of review is not mentioned in the 1978 Act.
Rather, the standard is nothing more than a judicially imposed gloss on the statute. See 102 S. Ct.
at 2863 n.5.
VoL 1983:197] NORTHERN PIPELINEDECISION
150. Id
151. See, ag., McAlister v. United States, 141 U.S. 174 (1891).
152. See, eg., O'Callahan v. Parker, 395 U.S. 258 (1969); Reid v. Covert, 354 U.S. 1 (1957).
153. 102 S. Ct. at 2868-69.
154. See the discussion in M. RE!sH, supra note 8 at 37-40. It does not necessarily follow,
however, that even these pragmatic justifications provide a sufficient basis for the article I status of
these courts. See infra text accompanying notes 159-62.
155. In previous writing, I have urged that a form of balancing process is a proper mode of
interpreting the first amendment protection of free expression. See Redish, The Value of Free
Speech, 130 U. PA. L. Rlv. 591, 622-25 (1982). There are important distinctions, however, be-
tween interpretation of article I on the one hand and the first amendment on the other. First, as
I have argued, the language of the first amendment does not dictate an absolute construction; it
provides merely that Congress may not abridge "the freedom of speech," a term of art that is by
no means self-defining. Second, if there is anything that is clear about the framers' intent in
drafting the first amendment, it is that they did not contemplate anything approaching an absolute
construction. Neither of these points is true of article III. Finally, the potentially severe harm that
can result to society from total protection of expression makes the harm caused by an absolute
wonsixuction of article HI pale by comparison. See inf-a text accompanying notes 170-74.
DUKE LAW JO URMN4L [Vol. 1983:197
158. See Glidden Co. v. Zdanok, 370 U.S. 530, 545-46 (1962).
159. See D. CURmE, supra note 16, at 42-43.
160. As I have argued elsewhere,
the choice is not between judges who sit at the whim ofthe government, on the one hand,
and direct control by federal judges, on the other. The issue is, simply, whether those
personnel who do hear military cases. . . will have their salary and tenure protected by
Article IM Therefore, it is difficult to understand how the exi encies of military disci-
pline in any way require non-independent adjudicators. Certainly, the military system
requires firm discipline, and on the battlefield the interest in having all the trappings of a
due process hearing may be forced to give way. These facts, however, need not affect
whether or not the individuals who hear the cases are independent of the prosecution.
M. RamisH, supra note 8, at 39-40 (footnote omitted).
161. Because of this fact, it is likely that if the military courts were held to require article Ull
judges, such judges could not, as a practical matter, be full-time members of the military.
162. The Court has expressed concern over the lack of independent military judges, but only
in the context of military adjudication of crimes by non-military personneL See, eg., United
btates ex reL Toth v. Quarles, 350 U.S. 11 (1955).
DUKE LAW JO UR"4L [Vol. 1983:197
165. Of course, to the extent such a question were raised in the course of a bankruptcy adjudi-
cation, it could be left for de novo decision in the article Ill reviewing court.
166. This conclusion must, of course, be tempered by the clearly established congressional
ability under article II, section 1 to vest such issues in state courts. But see infra note 169.
167. See mra text accompanying notes 44-52, 145-49.
168. See fa text accompanying note 170.
169. It is, of course, well accepted that Congress could have chosen to vest all of the federal
judicial power in the state courts. See, eg., Lockerty v. Phillips, 319 U.S. 182, 187 (1943). How-
ever, it does not logically follow that Congress may instead choose to circumvent the article M
courts by vesting the judicial power in non-article M federal bodies. The important difference
DUKE LAW JOUVALVo1 [Vol, 1983:197
the final adjudication of any case falling within the "judicial power," as
defined in article III, section 2.
between such bodies and state courts is that the latter are, in effect, as free from congressional
authority to regulate their salaries and tenure as are the article IH courts. The same is not true of
untenured non-article III federal bodies.
170. A classic illustration of this principle is the due process clause. U.S. CONsr. amends. V,
XIV. Seegenerall, Roe v. Wade, 410 U.S. 113 (1973).
171. U.S. CONST. art. III, § 2.
Vol. 1983:197] NORTHERN PIPELINEDECISION 227
172. In a footnote, Justice Brennan rejected the argument "that Art. HI is satisfied so long as
some degree of appellate review is provided." He reasoned that the "suggestion is directly con-
trary to the text of our Constitution" and that "[o]ur precedents make it clear that the constitu-
tional requirements for the exercise of the judicial power must be met at all stages of adjudication,
.and not only on appeal, where the court is restricted to considerations of law, as well as the nature
of the case as it has been shaped at the trial leveL" 102 S.CL at 2879 n.39. As already noted,
however, at other points in his opinion Brennan implied that much turned on the availability of
article Ill court review. See mupra note 143.
173. 102 S.Ct. at 2879 n.39.
174. 285 U.S. at 51.
175. Compare Crowell v. Benson, 285 U.S. 22 (1932) ih St. Joseph Stock Yards Co. v.
United States, 298 U.S. 38 (1936).
DUKE LAW JOURA4L [Vol. 1983:197
ments to individual facts, and by reviewing with greater care than pre-
viously used an agency's primary factual findings. The court might still
be allowed to take into account, as virtually a matter of common sense,
the existence of agency expertise, but no longer could the reviewing
court effectively abandon the performance of its functions to an agency
on the ground that the agency has greater familiarity with the subject
matter.
V. CONCLUSION