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James Pfander & Andrew Borrasso: Public Rights and Article III
Michael Ramsey

James E. Pfander (Northwestern University School of Law) and Andrew Borrasso (J.D. Northwestern '20) have posted Public Rights and Article III: Judicial Oversight of Agency Action (Ohio State Law Journal, forthcoming) (59 pages) on SSRN.  Here is the abstract:

As it works to define the relationship between the federal courts and the boards, commissions, and agencies that make up the administrative state, the Supreme Court has long distinguished between public and private rights. Dating from the decision in Murray’s Lessee, the public rights doctrine allows Congress to assign some matters either to the Article III judiciary or to non-Article III courts. Despite the doctrine’s pedigree, however, courts and commentators disagree about what triggers it. Only two years ago, in Oil States v. Greene’s Energy, the Court upheld the patent board’s power to review patent validity as a matter of public right. But a spirited dissent argued that patent validity contests require an Article III court. Similar disagreements have peppered the Court’s analysis of other public rights questions.

This Article offers a new account of Murray’s Lessee and a new synthesis of the public rights doctrine. Murray’s Lessee did not turn on Congress’s power to manage the government’s immunity from suit or on the government’s appearance as a party to the litigation (as many have mistakenly assumed). Instead, the Court drew on a distinction between the creation or constitution of new rights and the adjudication of disputes over existing rights. Nineteenth century jurists insisted on judicial control of adjudicatory matters, but deferred when Congress conferred discretionary authority on a board or commission or court to fashion new rights through the issuance of a constitutive decree or order. The distinction between the adjudicative resolution of disputes over existing rights and the issuance of constitutive orders to create new rights does much to explain Murray’s Lessee and other controversial applications of the public rights doctrine. Applying this new understanding to Oil States, the Article concludes that although patents issue through a constitutive process, disputes over their validity present adjudicative issues that fall outside the public rights doctrine.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!"