Caleb Nelson: Did I Get Public Rights Wrong?Michael Ramsey

Caleb Nelson (University of Virginia School of Law) has posted Did I Get Public Rights Wrong? (112 Va. L. Rev., forthcoming 2026) (63 pages) on SSRN.  Here is the abstract:

In Adjudication in the Political Branches, 107 Colum. L. Rev 559 (2007), I tried to identify and explain historical understandings of the kinds of disputes that Congress can authorize nonjudicial actors to resolve and the kinds of disputes that can be resolved only by courts.  The framework that I described revolved around two distinctions:  (1) the difference between “public rights” (which I defined as legal interests that belong to the government or the people collectively) and legal interests that belong to a private person; and (2) within the category of private legal interests, the difference between vested rights and mere privileges or expectancies.  In my telling, nineteenth-century lawyers and judges thought that Congress could administer and dispose of “public rights” and mere privileges or expectancies without judicial involvement, but that only courts could render judgments conclusively rejecting a private individual’s or entity’s claim to vested rights.  Thus, the extent of the adjudicative power that Congress either could exercise itself or could give nonjudicial actors depended on what was being adjudicated.

Because the Supreme Court has been looking to history on these matters, the framework that I described has enjoyed a resurgence.  Recently, though, Professor Gregory Ablavsky has taken issue with my account.  In Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277 (2022), he identified an alleged counterexample to the framework that I described:  when foreign sovereigns ceded territory to the United States, inhabitants of the ceded territories who claimed “imperfect” titles to land were not thought to be entitled to judicial adjudication of their claims, even though the legal interests that they asserted were regarded as property.  According to Professor Ablavsky, this history supports a broader understanding of “public rights” than I offered, and it potentially legitimates more nonjudicial adjudication than my framework would suggest.

This Article responds.  It explains why imperfect titles to land in the ceded territories were not regarded as judicially cognizable vested rights, and it defends my understanding of “public rights.”