from exclusivity to concurrence mark d. rosen

*Professor and Norman & Edna Freehling Scholar, Chicago-Kent College of Law, Illinois Institute ofTechnology. I received outstanding comments from a faculty workshop at the Chicago-Kent Collegeof Law and additional helpful words from Allan Erbsen and Nancy Marder.

Early stage draft of November 20, 2008 (10:51am)Please do not cite or quote without author’s permission. As you’ll see, I’ve not yetcompleted the article – parts remain to be written. I apologize in advance for not

providing a final product.

FROM EXCLUSIVITY TO CONCURRENCE

Mark D. Rosen*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. THE ANALYTICS OF CONCURRENCE, AND SOME EXAMPLES . . . . . . . . . . . . . . . . . . . . 7

A. Definitions and Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B. Analytical Tools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. Same-Effect versus Same-Source Concurrence . . . . 11

2. Non-Identicality. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

3. Imperfect Overlap. . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C. The Pacificus-Helvidius Debates . . . . . . . . . . . . . . . . . . . . . . . . . 17

II. THE HISTORICAL TRAJECTORY FROM EXCLUSIVITY TO CONCURRENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

A. Original Jurisdiction of the Various Federal Courts: The Road fromMarbury to Ames . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

B. Fact-Finding in Civil Adjudication: Of Juries, Judges, and Non-Article IIIAdjudicative Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1. Juries and Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2. Juries and non-Article III Adjudicatory Tribunals . . 29

C. Adjudicatory Jurisdiction of Article III and non-Article III Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

D. Legislative Power: Congress and Agencies . . . . . . . . . . . . . . . . . . . 40

E. Some other Contexts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

III. HOW AND WHY CONCURRENCE IS CREATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

A. Mechanisms for Creating Concurrence . . . . . . . . . . . . . . . . . . . . . 45

1. Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

2. Inherency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

3. Inactivity and Initiative-Taking . . . . . . . . . . . . . . . . . 46

B. Reasons for Concurrence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

1. What The Courts Have Said . . . . . . . . . . . . . . . . . . . 49

2ALEXANDER HAMILTON & JAMES MADISON, THE PACIFICUS-HEVLIDIUS DEBATES OF 1793-1794:TOWARD THE COMPLETION OF THE AMERICAN FOUNDING 68(MORTON J. FRISCH, ED.) (LIBERTY FUND2007).

a. Pragmatics and Past Practice . . . . . . . . . . . . . . . 49

b. Efficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

2. Systematizing Concurrence’s Benefits . . . . . . . . . . . 55

a. Unforeseen Circumstances . . . . . . . . . . . . . . . . . . 55

b. Efficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

c. Works-Around . . . . . . . . . . . . . . . . . . . . . . . . . 55

1. Practical Barriers . . . . . . . . . . . . . . . 55

2. Inaction By Primarily Tasked Institution. . . . . . . . . . . . . . . . . . . . . . . . . . . 55

3. Constitutional Barriers . . . . . . . . . . . 55

5. Synergies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

6. Addressing Emergencies. . . . . . . . . . . . . . . . . . . . . . 56

IV. NOT ALL OR NOTHING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

V. METHODS FOR ADDRESSING CONFLICTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

A. Institution-Based Conflict-Resolution Principles . . . . . . . . . . . . . . . 57

B. Time-Based Conflict-Resolution Principles . . . . . . . . . . . . . . . . . . 57

C. Multi-factor Conflict-Resolution Principles . . . . . . . . . . . . . . . . . . 57

D. No-Sorting Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

VI. THE BIG PICTURE: META-NARRATIVES AND CONSTITUTIONAL IMPLICATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

A. Meta-Narratives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

B. Constitutional Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

INTRODUCTION

2The same power cannot belong, in the whole to both departments, or be properlyso vested as to operate separately in each. Still more evident is it, that the samespecific function or act, cannot possibly belong to the two departments and beseparately exercisble by each . . . . A concurrent authority in two independentdepartments, to perform the same function with respect to the same thing, wouldbe awkward in practice, as it is unnatural in theory.

James Madison, Second Helvidius Letter

James Madison penned the above words when analyzing what today

[2008] FROM EXCLUSIVITY TO CONCURRENCE 3

3The question concerned the constitutionality of President Washington’s Neutrality Proclamation of 1793:did the President have the power to interpret a mutual defense treaty to determine whether the UnitedStates was obligated to go to war to assist France, or did Congress alone have the power to do so onaccount of its constitutionally granted power to declare war? I discuss Madison’s views as well as thoseof his interlocutor, Alexander Hamilton, infra at Part I.C. For an excellent discussion, see H. JEFFERSONPOWELL, THE PRESIDENT’S AUTHORITY OVER FOREIGN AFFAIRS (2002).

4U.S. CONST. ART. II, §2, cl. 1.

5See Brown v. Walker, 161 U.S. 591, 601 (1896) (recognizing this and noting that the difference betweenpardons and amnesties is “one rather of philological interest than of legal importance”).

6See U.S. CONST. ART. II, §2, cl. 2.

7See infra Part xx.

8See Cooley v. Board of Wardens of the Port of Philadelphia, 53 U.S. 299, 318-19 (1851).

would be called a “separation of powers” question.3 As this Article shows,Madison’s basic intuition – that power that is specifically allocated by theConstitution to one institution cannot be exercised by another – also featuresprominently in discussions concerning the distribution of power as betweenthe federal government and states (vertical federalism) and the distribution ofpower as between states (horizontal federalism). Indeed, the notion thatconstitutional allocations of power are “exclusively” held by the specifiedinstitution to which the power has been granted, and cannot reside“concurrently” in more than one governmental institution, is found incontexts apart from separation of powers and federalism – for instance,regarding the Seventh Amendment’s distribution of power between jury andjudge.

Perhaps nowhere else has Madison’s view of the basic architecture ofAmerican constitutionalism proven to be so wrong. This Article cataloguesand analyzes the many significant respects in which contemporary Americangovernment deviates from Madison’s assumption of what I shall call“exclusivity” and instead adopts what Madison believes to be the “unnatural”and “awkward” state of “concurrence.”

As regards the distribution of national powers, just consider thefollowing few examples. Although Article II, Section 2 provides that thepresident “shall have Power to grant Reprieves and Pardons,”4the Court longhas held that Congress has the power to grant amnesties that, the Court hasacknowledged, are functionally equivalent to pardons.5 Similarly, while theConstitution specifies only one mechanism by which the federal governmentcan create international agreements – treaties6 – most of this country’scontemporary international obligations have been created outside of thetreaty-making process, through so-called “sole executive agreements” and“joint congressional agreements.”7

Concurrence exists outside the context of separation of powers. Asregards “vertical” federalism – the federal government’s relation to the states– though Congress has the power to regulate interstate commerce, states alsohave power to regulate interstate commerce.8 In respect of “horizontal”federalism – the relation among states – it quite frequently is the case that


9See Allstate Ins. Co. v. Hague, 449 U.S. 302, 307 (1981); Mark D. Rosen, “Hard” or “Soft” Pluralism?:Positive, Normative, and Institutional Considerations of States’ Extraterritorial Powers, 51 ST. LOUIS L. J. 713, 729-30 (2007).

10See 31 U.S.C. §3730, discussed infra Part xx.

11Likewise, the posse comitatus doctrines allowed state and federal executive officials to compel privatecitizens to assist in the making of arrests and in otherwise executing a wide range of state and federal laws,exemplifying yet another instance of coordinacy: executive power that is jointly exercised by the executivebranch and private sector.

12See. e.g., Caleb Nelson, Preemption, 86 VA. L. REV. 225, 225 (2000)(“nearly every federal statute addressesan area in which the states also have authority to legislate”); See, e.g., Lee H. Rosenthal, Back in the Court’sCourt, 74 UMKC L.R. 687 (2006) (noting that problems arising from asbestos can be handled either bylegislatures or courts).

13See Michael D. Ramsey, Presidential Declarations of War, 37 U.C. DAVIS L. REV. 321 (2003).

more than one state has the power to regulate a given person, transaction, oroccurrence.9

And there are yet other contexts – beyond separation of powers andfederalism – where the Constitution also has been understood as allocatingpower concurrently. Though the Seventh Amendment allocates adjudicatoryfact-finding power to the jury, the jury is not the sole institution with thispower: administrative law judges in Article I courts find facts in the very samecontests where juries would have the constitutional power to fact-find, andArticle III judges engage in fact-finding of the sort performed by juries whenthey decide motions for summary judgment and motions to grant judgmentsnotwithstanding the verdict. To provide one last example, although the powerto sue government contractors belongs to the executive branch, it does notrest exclusively there: qui tam statutes empower private citizens to sue, onbehalf of the United States, anyone who has submitted a false claim to thefederal government.10 The power to sue government contractors to recoverfalse claims accordingly rests with both the federal executive and privatecitizens.11

Though commentators focusing on discrete doctrines sometimes haverecognized that governmental powers sometimes overlap,12 this is the firstArticle to comprehensively analyze the phenomenon of concurrence. Becausethe Constitution spends much of its time allocating power to specificinstitutions, the question of whether the power allocated is exclusively held bya single institution or instead is concurrently held by two or more institutionsis pervasive.

This Article’s analysis of the choice between exclusivity andconcurrence across multiple doctrinal contexts uncovers multiple recurringpatterns that, it is hoped, can lead to a more informed consideration in thefuture of the choice between exclusivity and concurrence. This is importantbecause many contested contemporary issues implicate, at least in part, thechoice between exclusivity and concurrence. Here are some examples: thoughthe Constitution vests the power to declare war with Congress, does thePresident have a similar power?13 What is the relation between the Congress’powers to regulate the land and naval forces and the President’s Commander-


14Ackerman; Reva Segal, ERA, Cal L. Rev.

15For an example of such an anxiety in a context relevant to concurrence, see See Larry Alexander andSaikrishna Prakash, Delegation Really Running Riot, 93 VA. L. REV. 1035 (2007).

in-Chief powers? Are there mechanisms outside of Article V by which theConstitution in effect can be amended?14

The Article is in six parts (some that are quite short!). Part Oneformally defines concurrence and exclusivity and provides six contemporaryinstances of concurrence. Part One explains how concurrence differs fromthe familiar concept of “checks and balance,” and then introduces severalanalytical tools that facilitate the analysis that follows in the rest of the Article.Part One concludes by closely analyzing the complete argument for exclusivitythat James Madison articulated in his famed Second Helvedius Letter, fromwhich this Article’s foreword quotes, as well as Alexander Hamilton’s counter-argument in support of concurrence.

The next four parts identify and analyze recurring patterns that emergefrom a cross-doctrinal analysis. Part Two uncovers a stunning historicalpattern: virtually all contemporary contexts where power is understood to beheld concurrently amount to renunciations of the Court’s original view,consistent with Madison’s, that the power was held exclusively by only oneinstitution. Part Two documents the doctrinal process by which the SupremeCourt has come to accept concurrence in three different doctrinal contexts.It shows that, in so doing, the Supreme Court has rejected categoricalapplication of the principle of expressio unius est exclusio alterius.

Part Three examines the how’s and why’s behind the switch fromexclusivity to concurrence. Part Three first uncovers three recurringmechanisms by which concurrence is generated. Notably, the initiative forshifting from exclusivity to concurrence mostly has originated outside thejudiciary – not terribly surprising in light of Part Two’s finding that courtstypically start with exclusivist assumptions. Part Three also explores thereasons for the shift from exclusivity to concurrence, identifying severalrecurring benefits of concurrence.

Part Four points out that the choice between exclusivity andconcurrence is not “all or nothing.” There are many contexts whereconstitutionally allocated power is universally recognized to be exclusively heldby a single institution. Further, there are some contexts where there has beena “counter-trajectory” from concurrence back to exclusivism. Moreover, evenwhere there is concurrence, there typically are limits on the degree to whichpower can be shared among two or more institutions. Taken together, PartFive suggests that the choice between exclusivity and concurrence has notbeen made on the basis of a trans-substantive or categorical principle, butinstead has been made on the basis of context-specific analyses. Part Five alsosuggests that “slippery slope” concerns that opening the door to concurrencecould lead to complete chaos are overblown.15

Part Five addresses one of the great anxieties that is created by


concurrently held power: the prospect of conflict among the multipleinstitutions. The specter of conflict sometimes is invoked as a trump cardagainst the conclusion that power is concurrently held. Part Five suggests thatthis overstates the concern by showing the multiple tools for managingconflict that are found in American constitutional law. Part Five argues thatthe potential of conflict is a cost of concurrence that appropriately is takenaccount in weighing the desirability of concurrence in a particular context, butthat, at a general matter at least, it should not serve as the sole basis fordeciding against concurrence.

Part Six, the Article’s final part, considers what are the appropriatelessons to be drawn from what the Article has uncovered. It first identifiesfour possible meta-narratives to describe the trajectory towards concurrencethat it uncovers: (1) a healthy adaptation to changing times and needs, (2) theCourt’s “law-on-the-books” catching up with the “law-in-action,” (3) thenatural process of entropy, or (4) the systematic extension of one set ofinstitutions at the expense of other institutions. Of these possibilities, thefourth might require elaboration to be comprehensible at this point: virtuallyall instances of concurrence have made it easier for federal institutions tocreate law, thereby extending federal power at the expense of states and theprivate sector. As we’ll see, all these narratives fit the action to a notinconsiderable degree.

The Article then considers the constitutional implications of itsfindings. The mere fact that concurrence is widespread does not on its ownmean, of course, that it is constitutionally legitimate. Not surprisingly, whatconstitutional lessons the reader draws will turn on her prior jurisprudentialcommitments. To be sure, this Article is not the place to engage in a debateabout such foundational questions of whether the Constitution isappropriately construed on the basis of (solely) the Founders’ understanding,what a reasonable member of the Founding generation would have thought,text, pragmatics, history, or something else. Fortunately, though, this Article’sfindings should be relevant to adherents of all these approaches toconstitutional interpretation.

To begin, understanding an underappreciated yet widespreadcharacteristic of contemporary constitutional doctrine should be of value toall constitutionalists. Beyond this, some, but not all, instances ofcontemporary concurrence will be troublesome to Originalists. Textualists willnot necessarily be bothered because, as this Article shows, there aresurprisingly strong textual arguments to support most if not all instances ofcontemporary concurrence. Those who favor any of the multiple schools ofdynamic constitutional interpretation will be intrigued to find the types ofpragmatic considerations that have driven the large-scale migration fromexclusivity to concurrence. The fact that concurrence typically has not beeninitiated by the judiciary underscores, among other things, the role thatgovernmental actors apart from courts play in determining what practices aredeemed consistent with our Constitution. Finally, adherents of almost all


16Madison draws a similar distinction in the Second Hevlidius letter.

17U.S. CONST. ART. III, §2, CL. 2 (emphasis supplied).

schools of constitutional interpretation may be encouraged to forthrightlyexamine the often unstated starting assumption of exclusivity that appears tobe shared by many lawyers and that is reflected in such aspects of our legalculture as the maxim of expressio unius est exclusio alterius.

I. THE ANALYTICS OF CONCURRENCE, AND SOME EXAMPLES

A. Definitions and Examples. “Concurrence” refers to the situationwhere a given activity “x” can be performed by more than one institutiondespite the fact that the Constitution (appears to) place the power to do “x”in one specified institution. “Exclusivity” refers to the situation where a givenactivity “x” can be performed by only a single institution. By “institution,” Imean the different entities that are implicitly adopted by the Constitution: forexample, the House of Representatives, the Senate, the Supreme Court,inferior article III courts, the President, states, juries, and citizens (the“People”). My definition of institution also embraces novel institutions notidentified in the Constitution, such as administrative agencies andsupranational tribunals.

It should be apparent from the above definition that “concurrence”is a different concept from “checks and balances.” Concurrence refers to thesituation where two (or more) different each have the power to undertake “x.”“Checks and balances,” by contrast, refers to the situation where two (ormore) institutions have distinctive roles in completing act “x.” So, forinstance, the President’s veto power is an aspect of checks and balances, butis not an example of “concurrence.” The same is true of the Senate’s role inapproving appointments of officers.16

What follows – by way of description, not justification – are someexamples of contemporary concurrence. That is to say, the fact that I discussan example of concurrence here, and elsewhere in the Article, should not beunderstood as a normative endorsement of the arrangement. Having a clearunderstanding of current institutional arrangements, it seems to me, is usefulif not essential for adherents of all schools of constitutional interpretation.What follows in the bulk of this Article, accordingly, is a description andanalysis of wide-ranging phenomenon that has occurred. I discuss thenormative constitutional implications of this wide-ranging practice in Part Six.

Here, then, are six contemporary examples of concurrence:

1. The Constitution states that “[i]n all cases affectingAmbassadors . . . and those in which a State shall beParty, the supreme Court shall have originaljurisdiction.”17 Though the Supreme Court indeed hasoriginal jurisdiction in these cases, inferior district courts also


18See Ames v. State of Kansas, 111 U.S. 449, 467 (1884).

19U.S. CONST. ART. III, §1.

20See James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118HARV. L. REV. 643, 646, 656-60 (2004) (“Congress has often assigned disputes that appear to fall withinthe scope of the federal judicial power to Article I tribunals whose judges lack salary and tenureprotections”); MARTIN H. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIALPOWER 36-51 (1980).

21Pfander, supra note 20, at 657.

22Crowell v. Benson, 285 U.S. 22, 51 (1932).

23Boyle.


25Fallon, supra note ?, at 923. Consider as well the various supranational adjudicatory panels that havebeen created under federal law. For example, whereas the conclusions of the federal agencies tasked withadministering the United States anti-dumping laws typically are subject to judicial review by two ArticleIII courts, the North American Free Trade Implementation Act creates new adjudicatory entities that arestaffed by representatives of the two disputing countries. For a discussion, see Monaghan, supra note 167,at 834-39. These adjudicatory entities are not Article III courts, yet they have the power to “directly applydomestic American legal standards” and to then “issue orders directly binding federal administrativeofficials” that “are not subject to further review in Article III courts.” See id at 837 (discussing Chapter

have original jurisdiction over cases brought by ambassadorsand in many cases brought by states.18 Accordingly,notwithstanding the Constitution’s allocation of original jurisdiction overcases affected Ambassadors and in which States are a party to theSupreme Court, district courts have concurrent authority with theSupreme Court to exercise original jurisdiction over such cases.

2. Article III of the Constitution states that “[t]he judicialpower of the United States, shall be vested in onesupreme Court, and in such inferior Courts as theCongress may from time to time ordain and establish.”19

Today, however, a significant amount of adjudication occursin non-Article III federal tribunals.20 For example, contractand property claims against the United States are heard in anon-Article III federal tribunal known as the Court ofClaims,21 and administrative agencies can hear disputesbetween private parties as to the compensation owed aninjured maritime worker.22 These non-Article III institutionscan oversee these adjudications despite the fact that contractand property claims against the United States also fall withinfederal district courts’ jurisdiction23 and notwithstanding thefact that federal district courts have “long handled maritimepersonal injury claims . . .”24 Indeed, as Professor Fallon hasobserved, “virtually all of the kinds of cases that are heard inarticle III courts, including criminal cases and civil disputesarising under the Constitution, laws, and treaties of the UnitesStates” today can be heard in non-Article III federal courts.25


19 proceedings under NAFTA).

26U.S. CONST. ART. II, §2, CL 2.

27See RESTATEMENT (3RD) FOREIGN RELATIONS LAW §303, comment a (1987). International agreementsalso have been created by the so-called “Sole Executive Agreements,” which are negotiated by thePresident but subject to no congressional approval whatsoever. See id. For example, President Carterentered into a sole executive agreement known as the “Algiers Accord” to gain release of the U.S.diplomatic personnel who were taken hostage in 1979 in Iran. See Bradford R. Clark, Domesticating SoleExecutive Agreements, 93 VA. L. REV. 1573, 1608 (2007). And President Clinton negotiated an agreementwith German Chancellor Schroder establishing a mechanism for handling insurance claims held byHolocaust victims. See American Insurance Association v. Garamendi, 539 U.S. 396, 406-08 (2003).

28Rest. For. Rel. Law, supra note 27, at §303, comment e.

29Brice Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 801 (1995).

30Id. at 917-19.

Accordingly, notwithstanding the Constitution’s allocation of the “judicialpower” to Article III courts, non-Article III tribunals frequently haveconcurrent authority with Article III courts to adjudicate disputes.

3. The Constitution specifies only one mechanism by which theUnited States can create international agreements – the treaty– about which it states that the “[President] shall havePower, by and with the Advice and Consent of theSenate, to make Treaties, provided two thirds of theSenators present concur.”26 Many of the most importanttwentieth century international agreements into which theUnited States entered, however, were not created via the treatyprocess, but instead have been created by Congressional-Executive agreements,27 which are negotiated by the Presidentand approved by simple majorities of both Houses ofCongress. The Restatement (Third) of Foreign Relations Lawtakes the position that “any agreement concluded as aCongressional-Executive Agreement could also be concludedby treaty” and notes that “[t]he prevailing view is that theCongressional-Executive agreement can be used as analternative to the treaty method in every instance.”28 Aprominent example of the Congressional-ExecutiveAgreement is the North American Free Trade Agreement,which received sixty-one supporting votes and thirty-eight“nos” in the Senate29 – a comfortably majority to be sure, butfar short of the two thirds of Senators present that is necessaryfor a treaty. The agreement bringing the United States intothe World Trade Organization likewise was a Congressional-Executive agreement, not a treaty.30 Accordingly, notwithstandingthe Constitution’s sole specification of the treaty as a mechanism forcreating international obligations, Congress has concurrent authority withthe Senate to create international obligations by means of Congressional-


31U.S. CONST. ART. I, §1.

32The Court has invalidated only two statutes on nondelegation grounds, both in the same year. So, inCass Sunstein’s words, the doctrine has “had one good year, and 211 bad ones (and counting).” Cass R.Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000). Thomas Merrill recently has arguedthat “legislative power” entails “the power to make rules for the governance of society,” thatadministrative agencies exercise precisely this power today, and that they properly do so as long asCongress explicitly delegates them this power. Merrill, supra note 54, 198, at 2120. Gary Lawsondescribes the status quo as one where the Court has found the intelligible principle standard to be satisfiedby“any collection of words that Congress chose to string together.” Lawson, supra note 199, at 371. Otherscholars who have noted that the non-delegation doctrine fails to curb delegations of de facto lawmakingauthority to agencies include David Schoenbrod and Marty Redish. See DAVID SCHOENBROD, POWERWITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION; REDISH,supra note 20, at 135-61.

33See NBC v. United States, 319 U.S. 190, 225-26 (1943).

34Yakus v. United States, 321 U.S. 414, 427 (1944).

35Whitman, 531 U.S. at 473.

36See Cooley v. Board of Wardens of the Port of Philadelphia, 53 U.S. 299, 318-19 (1851).

37Southern Pacific Co. v. Jensen, 244 U.S. 205, 212 (1917) (stating that “in the absence of some controllingstatute the general maritime law as accepted by the federal courts constitutes part of our national lawapplicable to matters within the admiralty and maritime jurisdiction”).

Executive Agreements.

4. The Constitution states that “All legislative Powers hereingranted shall be vested in a Congress of the UnitedStates.”31 All legal scholars agree that many administrativeagencies have virtually unfettered discretion to generateregulations that are functionally indistinguishable fromstatutes.32 For example, the Supreme Court has upheldstatutes that instruct agencies to regulate on the basis of“public interest, convenience, or necessity,”33 to set “fair andequitable prices,”34 or to set ambient air quality standards thatare “requisite to protect the public health.”35 Accordingly,notwithstanding the Constitution’s allocation of “[a]ll legislative Powersherein granted” to Congress, administrative agencies have concurrentauthority with Congress to create the legal obligations that guide citizens’actions.

5. The Constitution states that “Congress shall have power to .. . regulate commerce . . . among the Several states.” TheUnited States Supreme Court has held that states also havepower to regulate interstate commerce.36 Accordingly,notwithstanding the Constitution’s allocate of regulatory authority overinterstate commerce to Congress, state and Congress have concurrentauthority to regulate interstate commerce.

6. Congress has the power to enact laws relating to admiralty37


38American Dredging Co. v. Miller, 510 U.S. 443, 455 (1994).

39State of Illinois v. City of Milwaukee, 406 U.S. 91, 101 (1972).

40For instance, Congress’ powers under Article IV’s Effects Clause could support congressional powerto enter into a Congressional-Executive Agreement regarding the effect that is to be given foreign (in thesense of non-United States) judgments in state courts.

41Cooley.

42Though this constituted a shift from Gibbons v. Ogden, where Chief Justice Marshall embraced onlysame-effect concurrence.

and laws governing interstate disputes concerning suchmatters as water pollution. Yet there also is a “tradition offederal common lawmaking in admiralty”38 as well as a “federalcommon law of nuisance” regarding interstate waters.39

Accordingly, Congress and (primarily) federal courts have concurrentauthority to create the rules of admiralty as well as the rules that governmany interstate controversies.

B. Analytical Tools. For purposes of fully understandingconcurrence, it will prove useful to introduce some additional concepts andclarifications.

1. Same-Effect versus Same-Source Concurrence. “Same-Effect” concurrence refers to the circumstance where two differentinstitutions have the power to undertake “x”, but pursuant to different sourcesof power. Consider, for instance, example three above: the constitutionalsource of power that gives rise to Congressional-Executive Agreements is notArticle II’s treaty power, but instead is Article I’s grants of legislative powerto Congress (as well as any additional grants of legislative power to Congressoutside of Article I40). Same-effect concurrence hence describes the situationwhere two (or more) grants of power overlap such that more than oneinstitution has the power to effectuate act “x.”

“Same-source” concurrence refers to the situation where two differentinstitutions exercise the same power. Consider, for instance, example fivefrom above: the Constitution has granted Congress the power to regulateinterstate commerce, yet (it has been held) the States have retained power toregulate interstate commerce.41 Accordingly, two different institutions –Congress and the States – exercise the same power.42 As will soon be seen,there is controversy as to whether several of the other examples of currencylisted above are instances of “same-effect” or “same-source” concurrence.

One might think: surely “same-effect concurrence” is notcontroversial, only “same-source concurrence” would be. That is not so. Forexample, Madison’s words in the Second Helvidius letter were penned as anargument against “same-effect” concurrence: Madison argued that theCongress had power to interpret a mutual defense treaty under its powers todeclare war and that the President could not have the same power to interpretthe treaty under any of his constitutional powers because, as Madison stated,


43Madison, Second Hevidius Letter.

44Compare Brice Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 801(1995) with Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method inConstitutional Interpretation, 108 HARV. L. REV. 1221, 1275 (1995).

45See, e.g., Tribe, supra note 83..

46This concern permeates Madison’s discussion. See Second Helvedius Letter at x.

47See infra Part II.C.

48Id.

49Id. at 851.

“[a] concurrent authority in two independent departments, to perform thesame function with respect to the same thing, would be awkward in practice,as it is unnatural in theory.”43 Consider, as well, the recent battle betweenProfessors Ackerman and Golove, on the one hand, and Professor Tribe, onthe other, concerning the constitutionality of Congressional-ExecutiveAgreements.44 This too concerned the issue of “same-effect” concurrence, forneither the defenders nor the critic suggested that Congressional-ExecutiveAgreements were based on the “treaty” power. Rather, the question waswhether the power to create Congressional-Executive Agreements premised(primarily) on Congress’ Article I powers can coexist with, and isinterchangeable with, the treaty power.

But why should same-effect concurrence ever be controversial? It isnot at all unusual, after all, that two institutions having different mandates anddifferent sources of power will have overlapping responsibilities. Twoanswers suggest themselves. First, the activity in question frequently appearsto more readily fit under one of the two powers, opening the door toarguments based on expressio unius est exclusio alterius45 and fears that sometroublesome extension of governmental powers is at work. Second, if two ormore institutions have the power to do “x,” then it is possible that theinstitutions will have decide to act differently and thereby create a conflict.46

Indeed, the prospect of conflicts frequently is deemed to be a death blow toconcurrence.

To say that “same-effect” concurrence can be (and frequently is)controversial is not to suggest that the distinction between “same-effect”concurrence and “same-source” concurrence is inconsequential. Indeed, inseveral areas of the law, courts and scholars have fought mightily to establishthat two institutions’ overlapping powers are the result of “same-effect”concurrence but not “same-source” concurrence. For example, as I shallshow at greater length in Part Two, a recurring controversy in the context ofnon-Article III tribunals is whether the powers that such tribunals exercise isArticle III “judicial power” or something else.47 Chief Justice Marshallfamously asserted that territorial courts are incapable of receiving Article III“judicial power,”48 whereas the modern Court has seemingly switched tracks,concluding that Congress may “authorize the adjudication of Article IIIbusiness in a non-Article III tribunal.”49 Professor Monaghan likewise seems


50Monaghan, supra note 167, at 873 (emphasis supplied).

51See Pfander, supra note 20; Nelson, supra note 164.

52See Eric A. Posner & Adrian Vermeule, Interring the Non-Delegation Doctrine, 69 U. CHI. L. REV. 1721, 1731(2002).

53Merrill, supra note 54, 198, at 2125 (noting that “[t]here is no support in decisional law for” Posner andVermeule’s formal definition of legislative power as the power to enact statutes and observing that “[t]hepossibility seems never to have occurred to anyone in a context in which it would have decisionalsignificance” and that their definition “is at the very least idiosyncratic, and probably would be rejectedif presented to the courts”).

54Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 COLUM.L. REV. 2097, 2165 (2004) (arguing that “the nondelegation doctrine . . . should be rejected” and that “theCourt should repudiate the idea that Article I, Section 1 precludes any congressional sharing of legislativepower”).

55Whitman v. American Trucking Associations, Inc., 531 U.S. 457, 472 (2001).

content when he describes today’s “system of shared adjudication betweenagencies and Article III courts.”50 But not all agree with this. Two outstandingrecent tomes – one by Professor Jim Pfander in the Harvard Law Review, theother by Professor Caleb Nelson in the Columbia Law Review – are bothpremised on establishing that non-Article III tribunals do not exercise articleIII “judicial power” but instead exercise some other power.51 That is to say,both scholars largely accept as legitimate the adjudicatory powers that areexercised by non-Article III courts, but seek to show that they are instancesof “same-effect” rather than “same-source” concurrence.

Writing in the non-delegation context, Professors Eric Posner andAdrian Vermeule have undertaken the identical strategy as that of ProfessorsPfander and Nelson. Posner and Vermeule conclude that the powersexercised by agencies are fully constitutional because agencies never exerciseArticle I “legislative Powers.”52 Though agency rule-making may befunctionally equivalent to law-making so far as the citizen is concerned, Posnerand Vermeule assert that rule-making cannot constitute an exercise of“legislative power” because legislative power refers only to the power to enactstatutes. Professor Merrill concurs that agencies’ rule-making authority isconstitutional, but he criticizes Posner and Vermeule’s idiosyncratically narrowdefinition of “legislative” power53 and concludes that the power exercised byagencies indeed constitutes legislative power.54 In short, Posner and Vermeuleembrace “same-effect” concurrence whereas Merrill believes that agencies andCongress are examples of “same-source” concurrence. As a formal matter,contemporary caselaw treats agency powers as an aspect of “same-effect”concurrence as it insists that Article I’s “text permits no delegation of thosepowers.”55

One might ask: why should it matter whether power is exercised as amatter of “same-source” or “same-effect” concurrence? Five points bearmentioning.

Point One: The difference appears to matter to many, as shown by thefact that serious jurists and scholars have made serious efforts to establish that


56Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).

57See, e.g., Tribe.

contemporary institutional arrangements are examples of same-effect ratherthan same-source concurrence. Their concern can be fleshed out as follows.If the Constitution goes out of its way to specify special protections for thosewho exercise the judicial power (life tenure and salary guarantees) and specialprocedures that must be followed for legislation to be enacted, how can it beconcluded that the judicial power can be exercised by those who lacks thoseprotections or that the legislative power can be exercised by means of differentprocedures? Allowing “judicial power” to be exercised outside of Article IIIcourts or the “legislative power” to be exercised outside of Congress wouldbe to sanction an end-run around the Constitution’s specifications, renderingthe Constitutional language “mere surplusage.”56 This concern, in short, isnicely summarized and addressed by the well-known principle of expressio uniusest exclusio alterius57

Point Two: On the other hand, are the concerns enumerated above inPoint One really answered by establishing that an institutional arrangementis an example of same-effect rather than same-source concurrence? Isn’t theonly way to really guard against the concerns voiced in Point One to concludethat same-effect concurrence is also problematic, and not to simply assert (forinstance) that territorial courts exercise Article I rather than Article III power?

Point Three: To the extent there is power to Point Two – and I thinkthere is – what likely drives the impetus to justify a given institutionalarrangement as an instance of same-effect rather than same-sourceconcurrence is the sense that the former is a more limited license forconcurrence (perhaps because it really is the case that there sometimes are twopaths to the same goal). Thus, in situations where the Court (or scholars) donot feel empowered to all-out reject concurrence, insisting that they only areblessing same-effect concurrence appears to be an acceptable fall-backposition. In other words, in some contexts at least, advocates of same-effectconcurrence really seem to be sympathetic to exclusivity, but just can’t bringthemselves to embrace exclusivity’s implications.

Point Four: At the end of the day, perhaps the concerns laid out inPoint One can be allayed by generalizing Tom Merrill’s non-delegationanalysis. Merrill argues that agencies properly exercise actual legislative power,thereby forthrightly defending same-source concurrence. Merrill’s argumentdemonstrates that the Constitution’s text almost always can be plausiblyconstrued to permit concurrence even when the Constitution allocates powerto only one institution. After all, one might think that Article I, section 1provides a particularly strong textual basis for embracing exclusivity: itslanguage that “[a]ll legislative Powers herein granted shall be vested in aCongress” quite plausibly could be said to require that all legislative powervest only in Congress. Yet Merrill resists this conclusion because the “text ofthe Constitution is [ ] silent on the question whether or to what extent


58Id. at 2127.

59Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000) (emphasis supplied).

60The sole exceptions can be found in Article I, Section 10, Clause 1, which specifies a handful of actions(such as entering into treaties and coining money) that federal institutions may undertake but that Statesmay not. That the activities identified in Clause 1 are flatly prohibited to states, and may not be delegatedto states, is all but impossible to deny on account of the Constitution’s next two clauses, which specifyactivities that states shall not do “without the Consent of Congress.” See U.S. CONST. ART. I, §10, CL. 2& CL. 3.

61For an extended critique of delegation, see Alexander & Prakash, supra note 63.

62Id. at 2165. Furthermore, Merrill appears to be of the view that there sometimes can be “shared”powers even without delegation. Merrill believes that institutions apart from Congress have no inherentlegislative power (the “anti-inherency principle,” id. at 2101), and that there accordingly can be sharedlegislative powers only pursuant to congressional delegations, on account of Article I, Section 1'sspecification that the legislative powers “herein” granted are vested in Congress. See id. (“the referenceto legislative powers ‘herein’ granted can be understood to limit the anti-inherency principle to thosepowers granted in Article I itself.” ). This suggests that legislative powers granted to Congress outsideof Article I (perhaps under Section 5 of the Fourteenth Amendment, for instance) may be shared byinstitutions apart from Congress even without a delegation from Congress.

63Indeed, the broad implications of Merrill’s argument vis-a-vis delegations of other powers led LarryAlexander and Sai Prakash to pen an extended slippery slope discourse. See Larry Alexander andSaikrishna Prakash, Delegation Really Running Riot, 93 VA. L. REV. 1035 (2007). I respond to their argumentlater in this Article.

legislative power may be shared.”58 Cass Sunstein has made the sameargument: “[t]he Constitution does grant legislative power to Congress, but itdoes not in terms forbid delegations of that power.”59

Merrill’s and Sunstein’s arguments have broad implications outside thenon-delegation context because, with only a handful of exceptions,60 theConstitution’s grants of power are not accompanied by prohibitions on thedelegation of the allocated power.61 It would follow that, as a purely textualmatter, it is plausible to suggest that virtually all the Constitution’s grants ofpower to a particular institution could be delegated to another institution,resulting in what Merrill calls “share[d]” power62 and what this Article dubs“concurrence.”63

Point Five: On the other hand, Point Four’s textual argument doesnot really address the anxiety expressed in Point One that concurrence allowsthe Constitution’s carefully crafted mechanisms for accomplishing “x” to becircumvented by (what typically is) a less demanding procedure:Congressional-Executive Agreements are pursued because there’s notsufficient senatorial support for a treaty, and territorial courts rather thanarticle III courts were created so that their judges did not have to have lifetenure.

The last Part of this Article – Part Six – will revisit theseconsiderations regarding the distinction between same-effect and same-sourceconcurrence, and the legitimacy of concurrence generally, after we’ve had anopportunity to more fully examine the phenomenon of concurrence acrossdoctrinal contexts and time.

Finally, let me summarize two lessons from our discussion before


64Relatedly, there exists some areas of concurrence where the source of a particular governmental entity’spowers to act is still a question of controversy – federal common law, for instance.

65Court of Claims point

concluding this preliminary discussion of same-source versus same-effectconcurrence. First, as shown by the examples of non-Article III tribunals andagencies’ rule-making powers, there sometimes is controversy as to whethera contemporary institutional arrangement is an instance of “same-source” or“same-effect” concurrence. For example, as regards the adjudicatory powersof Article I and Article III courts, Chief Justice Marshall and ProfessorsPfander and Nelson are committed to “same-effect” concurrence, whereas themodern Supreme Court and Professor Monaghan seem comfortable with“same-source” concurrence.64 Second, as shown by the controversyconcerning Congressional-Executive Agreements, there sometimes iscontroversy over whether even same-effect concurrence is legitimate orwhether exclusivity is the only permissible power arrangement.

2. Non-Identicality. A second principle relevant to thisArticle’s analysis is that concurrence does not mean that the two institutions’acts are wholly identical. This “non-identicality principle” is true of bothsame-source and same-effect concurrence. In general, the acts of institutionswith concurrent power are non-identical as regards both (1) what musthappen for the act to come into existence and (2) what must happen for theact to be negated. There sometimes are additional important distinctionsbetween the “concurrent” acts.65 This principle of non-identicality should beself-evident, but it has surprising illuminating effect.

As an example of non-identicality regarding same-source concurrence,though both Congress and the states have power to regulate interstatecommerce, congressional regulations and state regulations of interstatecommerce differ in several respects. For one, different entities must vote(Congress versus state legislatures) for each act (legislation regulating interstatecommerce) to be created. Second, the Supremacy Clause establishes aconflict-resolution principle under which federal regulations trump stateregulations.

For an example regarding (what contemporary case law considers tobe) same-effect concurrence, administrative regulations also are not identicalto statutory commands. Though they share much in common – for instance,from the vantage point of most citizens, the legal obligations they impose areindistinguishable – administrative regulations do not appear in U.S. statutes,they also are brought into existence by the actions of two different institutions(Congress versus the agency), and finally regulations typically are easier toamend or rescind than statutes.

Congressional-Executive Agreements and Treaties provide a partialexception to the general principle of non-identicality. Although they differinsofar as they are created by different mechanisms (two-thirds of presentSenators in the case of treaties versus majorities of both houses in the case of


66See Rest. For. Relat. §303, comment j. There is uncertainty as regards the scope of the President’s powerto unilaterally rescind treaties. [elaborate]

67Id. at comment c, citing to Missouri v. Holland, 252 U.S. 416 (1920).

68For a good introduction, see DEBATES, supra note 2, at vii.

Congressional-Executive Agreements), the Congressional-ExecutiveAgreements and Treaties presently are understood as being equally resilient toalteration. For instance, both are subject to the “last-in-time” rule and can besuperseded by later international agreements or treaties.66

3. Imperfect Overlap. A third relevant principle is that theexistence of concurrence does not necessarily entail perfect overlap betweenthe powers of the two institutions. To the contrary, there frequently isimperfect overlap between the two institutions. For example, the earlytwentieth century case of Missouri v. Holland established that treaties “may dealwith a subject that Congress could not regulate by legislation in the absenceof a treaty.”67 Though the scope of Congress’ powers has significantlyexpanded since during the twentieth century – and so, for instance, the subjectaddressed in the Holland that was then viewed as falling outside the scope ofCongress’ commerce clause powers today undoubtedly would be deemed asbeing subject to the commerce clause – there still may be some subjectsrelating to international relations that do not fall within Congress’ enumeratedpowers. With respect to these matters, only treaties can be used, and thereaccordingly is imperfect overlap between the treaty power and Congressional-Executive Agreements.

C. The Pacificus-Helvidius Debates. The earliest exchange concerningthe choice between exclusivity and concurrence – and, perhaps surprisingly,to date still the most extended discussion of this issue – is found in theexchange between Alexander Hamilton and James Madison known as thePacificus-Helvidius Debates. The occasion for the debate was PresidentWashington’s issuance of the Neutrality Proclamation of 1793.68 In declaringthe new nation’s neutrality vis-a-vis France’s war with Great Britain andHolland, the Washington’s Proclamation interpreted America’s Treaty ofAlliance with France of 1778.

The question dividing Hamilton and Madison was whether thePresident had the authority to interpret the Treaty. Madison took theexclusivist position, arguing that only Congress had power to do so by virtueof its power to Declare war. Hamilton defended the Proclamation’s legality,adopting what this Article dubs “concurrence” in arguing that both thePresident and Congress had the power to interpret the Treaty.

Let us first look to Hamilton’s position. He acknowledged thatCongress had the power to interpret the Treaty pursuant to its power toDeclare war, but urged that the President also had the power to interpret theTreaty under the President’s executive powers:

[H]owever true it may be, that the right of the Legislature to declarewar includes the right of judging whether the Nation be under


69Pacificus Number 1, reproduced in Debates, supra note 2, at 13 (emphasis supplied).

70See id. at 16.

71See id. at 15.

72Id. at 15.

73Helvedius Number 2, reproduced in Debates, supra note 2, at 66 (emphasis supplied).

obligations to make War or not – it will not follow that the Executive isin any case excluded from a similar right of Judgment, in the execution of itsown functions.69

Hamilton here has put forward a defense of what this Article dubs “same-effect” concurrence. Hamilton believed that the source of the President’spower to issue the Proclamation was the Vesting clause.70 Though thisconstruction of the Vesting Clause was controversial then and remainsdisputed today, that issue is not relevant to this Article’s concern of whetherpower is allocated on an exclusive or concurrent basis. What matters is hisunderstanding that presidential and congressional powers could overlap suchthat both institutions have the power to undertake the same act (in this case,to interpret a Treaty). That Hamilton’s understanding of concurrence was nottied to his view of the Vesting Clause is proven later in the first PacificusLetter, where he presents a hypothetical in which the President interprets aTreaty pursuant to his powers under the Recognition Clause and the Congressalso has the power under the Declare War Clause to interpret the Treaty.71

Hamilton fully understood the import of his argument – that, under it, twoinstitutions had the power to undertake the same act – and indeed adoptedvirtually the same term that this Article utilizes, writing that “there results . .. a concurrent authority” as between the President and Congress.72 [nothingmore than assertion; no real justification, apart from textualist claim, of sorts]

Madison violently disagreed with Hamilton’s embrace of concurrence,dedicating the majority of his Second Helvidius Letter to disputing it. Hisposition boils down to two arguments. First, Madison claims to identify a“material error” in Hamilton’s position insofar as, Madison claimed, Hamiltonfailed to fully apply the principles he adopts:

He [Hamilton] had before admitted that the right to declare warincludes the right to judge whether the United States be obliged todeclare war or not. Can the inference be avoided, that the executive insteadof having a similar right to judge, is as much excluded from the right to judge asfrom the right to declare?73

It is not at all apparent, however, why Madison’s inference cannot be avoided– unless one assumes exclusivity, which of course is the very principle thatMadison hopes to establish. Two paragraphs later Madison tries again to drivehome the same point, but with no greater success. Madison asserts thatHamilton “cannot disentangle himself by considering the right of theexecutive to judge as concurrent with that of the legislature” for the followingreason: “[f]or if the executive have a concurrent right to judge, and the rightto judge be included in (it is in fact the very essence of) the right to declare, he


74Id.

75Id. at 69.

76See infra pp. 57.

must go on and say that the executive has a concurrent right also to declare.”74 But whyis this so if, as Hamilton hypothesized, the President’s right to interpret theTreaty derives from an independent presidential power? Why couldn’t thePresident interpret the Treaty for the purpose of exercising his independentpower and the Congress interpret the Treaty for purposes of determiningwhether it should declare war? Here, once again, Madison circularly assumeshis conclusion. So much for his first justification.

Madison’s second justification for opposing concurrence is moresubstantive than his first. The trouble with concurrence, he correctly asserts,is that it opens the door to conflict among the two institutions vested with thesame power:

If the legislature and executive have both a right to judge of theobligations to make war or not, it must sometimes happen . . . thatthey will judge differently . . . . In what light does this present theConstitution to the people who established it? In what light wouldit present to the world, a nation, thus speaking, thro’ two differentorgans, equally constitutional and authentic, two opposite language,on the same subject and under the same existing circumstances?75

Hamilton had a response to Madison’s argument. I shall discuss it inPart Five,76 which takes stock of six different mechanisms found in Americanlaw for resolving conflicts among institutions with overlapping power.Hamilton’s response tracks one of the six mechanisms. To provide a shortpreview, though, Point Five’s main response to Madison’s argument is two-pronged. First, the mere possibility of conflict is not a categorical argumentagainst concurrence, but instead means that a choice must be made amongconflict-resolution principles and an assessment undertaken as to whether thebenefits of concurrence are outweighed by its costs (primarily the possibilityof conflict). Second -- and what amount to a corollary of the point madeimmediately above – even if the costs of conflict outweighed the benefits ofconcurrency in the context of treaty interpretation and foreign relations, itdoes not follow that concurrence is undesirable as a general matter across alldoctrinal contexts.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Having carefully defined “concurrence” and “exclusivity” andintroduced the concepts of same-source concurrence, same-effectconcurrence, non-identicality, and imperfect overlap, we are ready to proceedto examine the many intriguing recurring patterns regarding the choicebetween exclusivity and concurrence.

II. THE HISTORICAL TRAJECTORY FROM EXCLUSIVITY TO CONCURRENCE

A study of Supreme Court case law reveals the tenacity of exclusivist


775 U.S. (1 Cranch) 137 (1803).

78U.S. CONST. ART. I, §2, cl. 2.

79Cf. Question of whether all Art. III judicial power has to be vested in a federal court (Story), seegenerally Pfander, Cal. L. Rev.

80The in the case issue concerned a question of federal law: the legal effect of a commission for publicjustice that had been signed by the President following the Senate’s advice and consent.

81Other parts of the 1789 Judiciary Act more obviously presented this question. Section 13 of the Actprovided that the Supreme Court had “exclusively” original jurisdiction over “suits or proceedings againstambassadors” but only “original, but not exclusive jurisdiction of all suits brought by ambassadors.” Id.(emphasis supplied). In other words, the Act provided that the Supreme Court’s original jurisdictionoverlapped with inferior federal courts’ original jurisdiction in cases brought by (but not against)ambassadors. This provision of Section 13 raised the same issue presented in Marbury because theConstitution states that “[i]n all cases affecting Ambassadors . . . the supreme Court shall have originalJurisdiction.” [maybe not: maybe this is Ames redux: not whether S Court jdn can be expanded, butwhether inferior court jdn can be expanded. In other words, the Constitution says that Supreme Courtshall have original jurisdiction, but does not state the other courts cannot have original jdn as well.

assumptions. Virtually always the judiciary has initially adopted exclusivistassumptions and has been resilient to claims that power can be concurrentlyexercised. Generally, the Court has, over time, been willing to acknowledgeconcurrence, though the Court’s ultimate blessing of concurrence typicallydoes not initiate the concurrent exercise of power but instead reflects a belatedrecognition of a widespread practice that has taken root outside thecourtroom. In other contexts, the Court has created doctrines that formallycling to exclusivism notwithstanding the fact that virtually all scholarsacknowledge that two institutions exercise concurrent powers. The bottomline, though, is that there is a clear trajectory in both practice and doctrine:initial exclusivist assumptions tend to give way to concurrence.

A. Original Jurisdiction of the Various Federal Courts: The Road fromMarbury to Ames. The substantive constitutional issue raised in Marbury v.Madison77 is both an early illustration of the choice between exclusivity orconcurrence and an exemplar of the Court’s initial approach to answering thequery. The Constitution provides that the “supreme court shall have originaljurisdiction in all cases affecting ambassadors, other public ministers andconsuls, and those in which a state shall be a party. In all other cases, thesupreme court shall have appellate jurisdiction.”78 The (still to be created)inferior federal courts and/or state courts had original jurisdiction of the othermatters that fell within scope of Article III’s “judicial power.”79

The substantive question famously presented in Marbury was whetherCongress could expand the Supreme Court’s original jurisdiction beyond thethree categories enumerated in the Constitution. The issue raised in the caseclearly fell within the “judicial Power of the United States,”80 and the case alsoclearly fell within the original jurisdiction of the inferior courts that Congresshad established. This is the respect in which Marbury presented the Court withthe choice between exclusivity and concurrence: Marbury confronted thequestion of whether the Supreme Court’s original jurisdiction could be madeto overlap with the inferior federal courts’ original jurisdiction.81


825 U.S. at xx.

83Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in ConstitutionalInterpretation, 108 HARV. L. REV. 1221, 1275 (1995).

84See Marbury, 5 U.S. at 174 (“If it had been intended to leave it in the discretion of the legislature toapportion the judicial power between the supreme and inferior courts according to the will of that body,it would certainly have been useless to have proceeded further than to have defined the judicial power,and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, isentirely without meaning, if such is to be the construction. If congress remains at liberty to give this courtappellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and originaljurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, madein the constitution, is form without substance.”).

85Marbury, 5 U.S. at 174.

86Id. at 174.

87Indeed, there was strong constitutional language on which the Chief Justice could have relied. Afterenumerating the cases in which the Supreme Court is to have original jurisdiction, Article III provides that“[i]n all other cases, the supreme court shall have appellate jurisdiction.” U.S. CONST. ART. III, §2, CL. 2.Extending the Supreme Court’s original jurisdiction to include mandamus correspondingly diminishes itsappellate jurisdiction and hence could be said to run afoul of this constitutional language. On the otherhand, the very last phrase of the above sentence from Article III appears to grant Congress the power tomake “exceptions” to the Supreme Court’s appellate jurisdiction. Id. For a collection of sources thatexamine these competing textual arguments here, see James E. Pfander, Marbury, Original Jurisdiction, andthe Supreme Court’s Supervisory Powers, 101 COLUM. L. REV. 1515, 1517 & n. 5 (2001).

88111 U.S. 449 (1884).

89Id. at 463.

The Court specifically considered the question of whether Congresscould “assign original jurisdiction to [the Supreme Court] in other cases thanthose specified in” the Constitution. The Court rejected this proposition asfollows:

Affirmative words are often, in their operation, negative of otherobjects than those affirmed; and in this case, a negative or exclusivesense must be given to them or they have no operation at all.82

As Professor Tribe has noted, Chief Justice Marshall’s reasoning here is anexample of the principle of expressio unius est exclusio alterius:83 from the fact thatthe Constitution “apportion[ed] the judicial power between the supreme andinferior courts,”84 Marshall concluded that only the institution that had beenconstitutionally allocated original jurisdiction, and no other, could exerciseoriginal jurisdiction.85 Any other interpretation would render the Constitution’sgrant “mere surplusage.”86 Chief Justice Marshall’s chief justification forMarbury’s substantive holding accordingly was an exclusivist argument.

My intention here is not to suggest that this portion of Marbury wasincorrectly decided,87 but instead to show that its exclusivist justification hasnot fared well. Consider in this regard the Court’s decision in Ames v. State ofKansas.88 The State of Kansas had sued several corporations in Kansas statecourts, and defendants had removed to an inferior federal court in reliance onthe federal question statute, which grants inferior federal courts jurisdictionover cases raising questions of federal law.89 At issue in Ames was theconstitutionality of the federal question statute’s application to a case in which


90U.S. CONST. ART. III, s. 2, cl. 2.

91Ames, 111 U.S. at 467.

92See Ames, 111 U.S. at 447 (“we are unable to say that it is not within the power of congress to grant tothe inferior courts of the United States jurisdiction in cases where the supreme court has been vested bythe constitution with original jurisdiction.”).

93Ames, 111 U.S. at 468 (quoting Gittings v. Crawford)(emphasis supplied).

94See supra at xx.

95Though additional constitutional language conceivably could answer the question, eg, “all” the powershall vest. Interesting, though, that Ames didn’t rely on this textual warrant in distinguishing Marbury.

a state was a party: Could Congress assign original jurisdiction to an inferiorfederal court when the Constitution granted the Supreme Court “originaljurisdiction” in “all Cases . . . in which a State shall be Party”?90

The Ames Court acknowledged that Marbury “used language . . . whichmight, perhaps, imply that such original jurisdiction as had been granted by theconstitution was exclusive.”91 On this approach, the Supreme Court alone(among federal courts) would have had original jurisdiction over cases as thisin which a state was a party on account of Article III’s grant of originaljurisdiction to the Supreme Court.

But Ames rejected this approach and ultimately upheld Congress’power to grant inferior courts original jurisdiction over the same subjects thatfall within the Supreme Court’s Constitution-granted original jurisdiction.92

Ames instead relied on a rationale that had been provided by Chief JusticeTaney in a circuit opinion:

the grant of jurisdiction over a certain subject-matter to one courtdoes not, of itself, imply that the jurisdiction is to be exclusive. Inthe clause in question [in the Constitution] there is nothing but mereaffirmative words of grant, and none that import a design to exclude thesubordinate jurisdiction of other courts of the United States on the same subject-matter.93

The italicized language, it should be noted, is precisely the same argument thatProfessors Merrill and Sunstein provide in defense of Congress’ powers todelegate legislative authority to agencies.94

Three important lessons emerge from considering the relationshipbetween the Taney rationale in Ames and Chief Justice Marshall’s reasoning inMarbury. First, the two are at loggerheads. Marbury instructs that theConstitution’s grants of power are conclusively presumed to be exclusive.Otherwise, said Chief Justice Marshall, the Constitution’s language would be“mere surplusage.” Ames, by contrast, strips any presumption of exclusivityfrom the Constitution’s grant of power to a particular institution.

Second, insofar as much of the Constitution’s text consists ofaffirmative grants of power to particular institutions, the interpretive questionthat both Marbury and Ames address – whether the Constitution’s affirmativegrant of power is to be construed as a constitutional mandate that only thatinstitution have the specified power – is pervasive.95


96U.S. CONST. AMEND. VII.

97See, e.g., Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 435-36 & n. 20 (1996). While ridingcircuit, Justice Story was among the first of the American jurists to equate the Seventh Amendment’slanguage of “common law” with the “common law of England.” United States v. Wonson, 1 Ga.. 5, 20(1812); see also Slocum v. New York Life Insurance Co., 228 U.S. 364, 377 (1913) (approvingly quotingthis language from Justice Story’s Wonson opinion).

98Suja A. Thomas, Why Summary Judgment is Unconstitutional, 93 VA. L. REV. 139, 143 (2007) (showing thatonly “the jury or the parties determined the facts,” not the judge, under English common law at the timeof 1791).

Third, and finally, Ames’ and Marbury’s contrary resolutions to theinterpretive question strongly suggest that constitutional text alone does notanswer the question of whether constitutional grants are exclusive. How thenis the decision to be made as to whether the Constitution’s power-grants areexclusive or potentially concurrent? This important question will be taken upin Part III.

B. Fact-Finding in Civil Adjudication: Of Juries, Judges, and Non-Article IIIAdjudicative Tribunals

The Seventh Amendment allocates power to the hybridpublic/private institution known as the jury, granting juries the power “[i]nSuits at common law” to “tr[y] . . . fact[s].” The Seventh Amendmentsimultaneously limits the power of federal judges, providing that “[c]ourt[s]”are not permitted to “re-examine[]” the jury’s findings “otherwise . . . thanaccording to the rules of the common law.”96 The Court long has held that“common law” for these purposes refers to the procedures for re-examiningjury verdicts that were available in English common law in 1791, when theSeventh Amendment was adopted.97

This section shows that, and explains how, an exclusive regime inwhich only juries had the power to find facts was transformed into a systemof concurrence. Today, the power to fact-find during adjudication is heldjointly by juries, ordinary federal judges, and non-Article III adjudicativetribunals. Subsection 1 examines the trajectory from exclusivity toconcurrence as between juries and Article III judges. To this day, the Courthas been reluctant to formally acknowledge the concurrence that exists.Subsection 2 examines the trajectory from exclusivity to concurrence asbetween juries and Article I tribunals. A different story appears here: thoughthe Court initially denied and sought to tightly cabin concurrence, it ultimatelywas forthright in acknowledging concurrence.

1. Juries and Judges. Suja Thomas has shown that Englishcommon law as of 1791 adopted what this Article dubs an “exlusivist”allocation of duties in which only the jury, not the judge, had power to findfacts.98 Under three common law procedures, neither the judge nor jury foundfacts: instead, the parties stipulated to the facts (the “demurrer to thepleadings,” the “demurrer to the evidence,” and the “special case” under theparties’ agreement as to the facts), and the judge thereafter applied the law to


99See id. at 148-154, 156-57. Under the demurrer to the pleadings and demurrer to the evidence, one partyadmitted to the facts alleged by the other party (the former after the pleadings had been filed, the latterduring the trial itself). Id. at 148-54. Under the special case, the parties could jointly stipulate to specificfacts. Id. at 156-57.

100Id. at 157-58.

101Id. at 155. Of particular relevance to the discussion above, insufficient evidence was not a basis for acompulsory nonsuit. Id.

102228 U.S. 364, 382 (1913)

103See Practice Conformity Act, ch. 225, 17 Stat. 197 (1872). For a discussion, see Ellen E. Sward, TheSeventh Amendment and the Alchemy of Fact and Law, 33 SETON HALL L. REV. 573, 583 & n. 63 (2003).

104Id. at 387-88.

the stipulated facts.99 Under the other common law procedures, the jury’sfinding of facts provided the ground for the case’s outcome. In the “specialcase” following a jury’s general verdict, the court decided a disputed questionof law but used the jury’s findings of fact. Common law courts could grantmotions for a “new trial” on the ground that the evidence did not support thejury’s verdict, but the result was a new trial during which time a (new) jurywould find the facts.100 Finally, under a compulsory nonsuit, a common lawcourt could enter judgment for a defendant following jury verdict for plaintiff,but only if the jury’s verdict were unsupported as to a particular matter oflaw.101

Early American jurisprudence tracked England’s exclusivist approachto dividing power between judge and jury. The 1913 case of Slocum v. NewYork Life Insurance Co.,102 and the cases on which it relied, are representative. Before adoption of the federal rules of civil procedure in 1938, a federalstatute directed federal courts to apply state procedural rules in all commonlaw matters.103 Pennsylvania law at the time of the Slocum decision permittedwhat today would be called a judgment notwithstanding the verdict:Pennsylvania procedure authorized judges to disregard jury verdicts on findingthe evidence insufficient and instead to enter judgment for the other party.The Slocum Court ruled that this procedure, when applied by federal courts,violated the Seventh Amendment. The problem was not that the federal courthad set aside the verdict, for procedures available under the common law(such as the motion for new trial) authorized courts to set aside jury verdictsunder specific circumstances. The sole problem, according to Slocum, was thatPennsylvania’s procedural rule permitted the judge to “itself pass on the issuesof fact” by issuing a judgment for the other party.104

The assumption of “exclusivity” – the notion that the jury’s andjudge’s constitutional duties vis-a-vis facts were wholly distinct and non-overlapping – pervaded the Slocum decision. The following statement of theCourt is illustrative:

In the trial by jury, the right to which is secured by the SeventhAmendment, both the court and the jury are essential factors. Tothe former is committed a power of direction and superintendence,


105Id. at 382 (emphasis supplied).

106United States v. Wonson, 1 Gall. 5, 20 (1812). Justice Story reiterated this understanding while writingfor the Supreme Court in Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447-48 (1830).

107Baylis v. Travellers’ Ins. Co., 113 U.S. 316 (1885) (emphasis supplied), quoted in Slocum, 228 U.S. at386-87.

108See Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899), quoted in Slocum, 228 U.S. at 379.

109See Galloway v. United States, 319 U.S. 372, 404 (1943) (Black, J., dissenting). For some examples ofthe traditional rule, see, e.g., Drakely v. Gregg, 8 Wall. 242, 268 (case to jury if evidence “tended to provethe position” of the party); Hickman v. Jones, 9 Wall. 197, 201.

11081 U.S. 442 (1871).

111Galloway, 319 U.S. at 404 (Black, J., dissenting).

and to the latter the ultimate determination of the issues of fact. Onlythrough the cooperation of the two, each acting within its appropriatesphere, can the constitutional right be satisfied. And so, to . . .permitone to disregard the province of the other is to impinge on that right.105

Indeed, the Slocum Court quoted considerable precedent thatsupported its “exclusivist” conception regarding the division of labor betweenjudge and jury. As early as 1812, Justice Story, sitting as a circuit justice, hadobserved that “the facts once tried by a jury are never re-examined, unless anew trial is granted in the discretion of the court before which the suit isdepending . . . or unless the judgment of such court is reversed by a superiortribunal . . .”106 The logic of exclusivism was even more clearly in an 1885 casein which the Supreme Court reversed a federal court that had awardedjudgment for the defendant after the jury had returned a verdict for theplaintiff because “without a waiver of the right of trial by jury, by consent ofparties, the court errs if it substitutes itself for the jury, and, passing upon the effect of theevidence, finds the facts involved in the issue and renders judgment thereon.”107 An 1899Supreme Court decision likewise stated that “[t]he facts there tried anddecided cannot be re-examined in any court of the United Stated States . . .[N]o other mode of re-examination is allowed than upon a new trial, eithergranted by the court in which the first trial was had or to which the record wasreturnable, or ordered by an appellate court for error in law.”108

But exclusivism did not hold for long. Two lines of Supreme Courtdecisions together had the effect of giving judges significant fact-findingpowers. Because this augmentation of the judge’s power occurred withoutdepriving juries of their fact-finding powers, the result was a regime in whichjudges and juries had concurrent powers to find facts. The first line ofdecisions addressed the question of when federal courts could keep cases fromjuries on the ground that insufficient evidence had been put forward. Thesecond line of cases concerned what federal courts were permitted to do afterdetermining that evidence presented was not legally sufficient.

As to the first line of cases, the traditional rule was that a “case mustgo to the jury unless there was ‘no evidence.’”109 The 1871 case of ImprovementCompany v. Munson110 acknowledged (though derogatorily renamed) thetraditional rule, and then proceeded to “completely repudiate[]”111 it:


112Munson, 81 U.S. at 448 (emphasis supplied).

113The “recent decisions of high authority” on which the Supreme Court relied all were decisions fromEngland that post-dated 1791. For a critical discussion of the Supreme Court’s reliance on these cases,see Sward, supra note 103, at 594-99 (concluding that the English cases “in no way can [ ] be construedas allowing judges to take cases away from the jury when there are disputes of pure questions of fact . ..”).

114Galloway, 319 U.S. at 404 (Black, J., dissenting).

115Cf. Greenleaf v. Birth, 9 Pet. 292, 299 (1835) (“Where there is no evidence tending to prove a particularfact, the court(s) are bound so to instruct the jury, when requested; but they cannot legally give anyinstruction which shall take from the jury the right of weighing the evidence and determining what effectit shall have.”).

116For some time after Munson, the United States Supreme Court continued to recite the pre-Munson“any evidence” test. See, e.g., Hepner v. United States, 213 U.S. 103, 115 (1909) (summarizing the lawas “requiring the court to send a case to the jury . . . where the evidence is conflicting on any essentialpoint”).

117288 U.S. 333 (1933).

118See 59 F.2d 986.

Formerly it was held that if there was what is called a scintilla ofevidence in support of a case the judge was bound to leave it to thejury, but recent decisions of high authority have established a morereasonable rule, that in every case, before the evidence is left to thejury, there is a preliminary question for the judge, not whether thereis literally no evidence, but whether there is any upon which a jurycan properly proceed to find a verdict for the party producing it, uponwhom the onus of proof is imposed.112

In shifting from one legal test to another,113 the Court opened the door tojudges assuming significant fact-finding powers. Under the traditional rule,the jury’s power to fact-find could not be exercised by the judge because thejury heard the case if there was “‘any evidence’ to support a party’scontention;”114 the judge could keep a matter from the jury only if there was noevidence to be weighed or analyzed and hence no facts to be found.115 Thereplacement test introduced in Munson, by contrast, authorized judges to keepmatters from the jury by deciding that the facts that had been put into therecord could not “properly” ground a verdict in view of the facts that hadbeen put in by the other side.

After the Munson rule took root,116 there is little question that federaljudges in fact took on the role of finding facts. This is well illustrated by thecase of Pennsylvania Railroad v. Chamberlain,117 which concerned the propriety ofa trial court’s order that a jury grant verdict for defendant. Writing for theSecond Circuit, Judge Learned Hand had reversed the district court’sjudgment, ruling that the district court should have allowed the case toproceed to the jury because there was sufficient evidence to support a verdictfor the plaintiff.118 Citing to the Munson rule, the Supreme Court reversedJudge Hand, deciding that the testimony of plaintiff’s sole witness could nothave supported a verdict for the plaintiff. It is hard to escape the conclusionthat the Supreme Court made credibility determinations and weighed theevidence. Plaintiff’s witness was an experienced train yard worker who testified


119Id. at 338.

120Id. at 343.

121For another example, see the discussion of Galloway v. United States, 319 U.S. 372 (1943), infra note125.

122The common law procedure permitting a party to move for judgment after trial but before verdict, thedemurrer to the evidence, required that the moving party stipulate to the facts alleged by the non-movingparty. Galloway v. United States, 319 U.S. 372, 390 (1943). The judge accordingly did not find facts, buttook the facts stipulated by the moving party and applied the stipulated facts to the law. See Thomas,supra note 98, at 150-54.

123319 U.S. 372 (1943).

124See Sward, supra note 103, at 599-613 (showing that earlier decisions had upheld directed verdictswhere one of the parties had offered no evidence at all or where court was asked to apply undisputed factsto the law).

that he saw a faster-moving 9-car train closely trailing a slower-moving 2-cartrain, heard a loud crash, and thereafter discovered the decedent’s body. TheCourt held that there was no evidence of a collision because the defendantrailroad company’s witnesses testified there had been no train crash andplaintiff’s witness had said he heard a “loud crash” but did not use the word“collision.”119 If this on its own were not enough, the conclusion that theCourt engaged in fact-finding seems irresistible in view of its statement that“[t]he fact that [the defendant railroad’s] witnesses were employees of the[railroad] . . . does not impair this conclusion.”120 This last statement, after all,is an explicit assessment that the railroad’s witnesses were credible, andcredibility determinations are widely (and correctly) understood to be a crucialcomponent of fact-finding.121

The second line of cases responsible for shifting concurrent fact-finding authority to federal courts concerned what judges were permitted todo upon determining the evidence to be insufficient to support a judgment.Two common law features assured that juries, not judges, alone made theultimate findings of fact. First, the common law in 1791 did not have aprocedure akin to the directed verdict under which a party could ask the courtto rule in his favor after trial but before the jury’s verdict on the ground thatthe other party’s evidence was insufficient.122 Second, although the commonlaw permitted the losing party to challenge the verdict after the jury haddelivered its verdict on grounds of insufficient evidence, a winning motionnetted a new trial before another jury, not a judge-awarded verdict.

Twentieth century cases eliminated these two limitations, importantlyaugmenting judges’ fact-finding authority. As to the first limitation, thedecision of Galloway v. United States123 upheld the directed verdict under thenewly adopted federal rules of civil procedure, permitting the judge to enterjudgment after trial but before the jury had offered its verdict. Although manyprevious Supreme Court decisions had approved procedures akin to thedirected verdict, Galloway appears to have been the first decision to allow adirected verdict on the ground of insufficient evidence.124 The significance ofthe Galloway decision’s approval of the directed verdict is dramatically


125See Galloway, 319 U.S. at 397 (Black, J., dissenting). the Supreme Court in Galloway v. United States,319 U.S. 372 (1943), upheld a directed verdict against a veteran who had sued for benefits due under awar risk insurance policy. The veteran had the burden of proving “total and permanent” disability nolater than May 31, 1919. The veteran’s guardian introduced testimony from a doctor who had diagnosedthe veteran as suffering from a form of dementia that had been triggered by the shock of conflict on thebattle field before 1919. The veteran also had offered the testimony of 2 fellow soldiers, a friend who hadknown him both before and after the war, and his Commanding Officer, all of whom testified tobehaviors that were consistent with the symptoms of insanity that the testifying doctor had identified.Id. at 408-12. Reviewing this testimony in detail, three Justices reasonably concluded in dissent that themajority of the Court “re-examine[d] testimony offered in a common law suit [and] weigh[ed] conflictingevidence.” Id. at 397 (Black, J., dissenting); see also Sward, supra note 103, at 603 (noting that “[t]he issuein Galloway could not be classified as anything other than a question of fact: was Galloway permanentlyand totally disabled by reason of mental illness as of May 31, 191, or not?”). Simply put, the majority’sassertion that they “gave full credence to all of the testimony” is not credible. Galloway, 319 U.S. at 396.

126See 295 U.S. 654 (1935).

127Redman predated the federal rules of civil procedure and, pursuant to a federal statute then in force,applied the procedures of the state in which the federal court sat. See Redman, 295 U.S. at 661.

128To be sure, the Redman Court distinguished Slocum on the ground that the trial court had not yet decidedthe defendant’s motion to dismiss and motion for directed verdict, both of which had been submitted tothe court before the jury began its deliberations. Redman, 295 U.S. at 658-59. The Second Circuit hadnot deemed this technical difference to be material, and even the Redman Court acknowledged that “someparts of the [Slocum] opinion give color to the interpretation put on it by the Court of Appeals.” Id. at661. A fair reading of Slocum shows Redman’s acknowledgment to be a decided understatement.Commentators justifiably have understood Redman as having effectively reversed Slocum. See, e.g.,Thomas, supra note 98, at 168-73 (concluding that Redman was a “drastic change” from Slocum); Sward,supra note 103, at 613-24 (“contrast[ing]” Redman and Slocum and showing that Redman was not supportedby other cases the opinion had relied upon).

129Sward, supra note 103, at 616. Because the Supreme Court did not grant certiorari on the sufficiencyof the evidence, its opinion in Redman provides only a cursory review of the facts. Professor Sward nicelyreviews the factual record as it was discussed in the court of appeals decision, definitively showing thatthe judges who had determined the evidence to be inadequate had weighed evidence and assessed

amplified by the earlier Munson decision, which rejected the “any evidence”rule and, as discussed above, gave judges the power to fact-find. Indeed,Galloway itself well-illustrates the federal judge’s new powers to fact-find; threedissenting Justices in the Galloway decision carefully reviewed the documentaryand testimonial evidence that had been adduced at trial and convincinglydemonstrated that the majority in the case, as well as the trial judge, had“weigh[ed] conflicting evidence” and made credibility assessments.125

As to the second original limitation, the decision in Baltimore &Carolina Line v. Redman126 held that federal judges could not only disregard ajury’s verdict on grounds of insufficient evidence, but also immediately entera verdict for the other party – the equivalent of a judgment notwithstandingthe verdict.127 Redman was an abrupt break with the Slocum decision discussedabove, which only twenty years before had held precisely the opposite.128 Aswith the Galloway decision’s upholding of the directed verdict, Redman’s fullsignificance vis-a-vis judges’ fact-finding powers can be understood only upontaking account of Munson’s rule. Indeed, by the time the Redman case camebefore the Supreme Court, “four judges had considered the sufficiency of theevidence, with two believing that the evidence was sufficient, and twobelieving that it was not.”129 This alone strongly suggests that the judges’


credibility. See id. at 614-16.

130See supra note 129.

131Fed. R. Civ. P. 56.

132Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

133Thomas, supra note 98, at 143.

134Atlas Roofing Co., Inc. v. Occupational Safety and Health Review Commission, 430 U.S. 442, 455(1977).

135Id. Independent of the Seventh Amendment question of whether administrative judges rather thanjuries can find facts is the question of whether adjudicatory facts can be found by non-article III courts– what is variously conceptualized as either a due process or an Article III question. Most federallegislative schemes provide that agency facts are reviewable by federal courts (sometimes district courts,sometimes only courts of appeals) under a substantial-evidence test, id. at 456 & n. 13, and this hasrepeatedly been held to be constitutional. Id. The Supreme Court has not yet decided whether Congresscould “commit the adjudication of public rights and the imposition of fines for their violation to anadministrative agency without any sort of intervention by a court at any stage of the proceedings.” Id.

determination that the evidence was insufficient was itself based on judicialfact-finding, a conclusion that a review of the record bears out.130

To be clear, Munson, Galloway, and Redman did not displace the jury’sfact-finding powers and thereby replace one exclusivist regime with another.Rather, these (and other) decisions created a regime in which judges also hadfact-finding powers. The contemporary result is a regime of concurrence inwhich judges and juries both have fact-finding powers: juries still find facts andreturn verdicts, but judges also exercise fact-finding powers when they issuedirected verdicts, motions-notwithstanding-the-judgment, and summaryjudgments. As to the latter, a federal court deciding a motion for summaryjudgment must determine if there is a “genuine issue as to any material fact”131

by asking whether “a reasonable jury could return a verdict for the nonmovingparty.”132

Under these standards, federal judges now “decide[] whether factualinferences from the evidence are reasonable,” with the result that “[c]ases thatwould have been decided by a jury under the common law are now dismissedby a judge under summary judgment.”133 To date, however, the Court has notbeen willing to acknowledge the degree to which federal courts have beenawarded fact-finding powers that used to belong solely to juries.

2. Juries and non-Article III Adjudicatory Tribunals. Juriestoday share adjudicatory fact-finding power not only with article III judges,but with yet another governmental institution: judges on non-Article IIItribunals. Administrative agencies are the most important of these non-ArticleIII tribunals. The rule today, as stated in the 1977 case of Atlas Roofing Co. v.Occupational Safety and Health Review Commission, is that “when Congress createsnew statutory ‘public rights,’ it may assign their adjudication to anadministrative agency” and the non-Article III administrative judge then hasthe power to find facts.134 Further, “[t]his is the case even if the SeventhAmendment would have required a jury [were] the adjudication of those rights[to be] assigned instead to a federal court . . .”135 In other words, at least as


136Congress has a choice as to which institution to entrust with fact-finding authority.

137Monaghan, supra note 167, at 868.

138Id. at 873.

139See, e.g., Hepner v. United States, 213 U.S. 103, 115 (1909) (defendant “entitled to have a jurysummoned” in action of debt brought by the United States to recover penalty under federal statuteregulating immigration of aliens); United States v. Regan, 232 U.S. 37, 47 (1914) (same).

140Block v. Hirsh, 256 U.S. 135, 158 (1921).

141Id. at 154-57.

142Id. at 156.

regards public rights, the Supreme Court has forthrightly acknowledged thatadministrative agencies and juries have concurrent authority to fact-find as aconstitutional matter.136 This amounts to significant concurrence because, asProfessor Monaghan recently has reminded us, “[t]he ‘public rights’ exceptionis a wide and significant one”137 that “has been significantly enlarged so as toabsorb much of what hitherto had fallen into the private rights domain.”138

Consistent with the general trajectory from exclusivity to concurrencedocumented above in other doctrinal contexts, the Supreme Court has notalways acknowledged this concurrent regime. To the contrary, during mostof our country’s history, the Court has understood the Constitution’sallocation of adjudicatory fact-finding authority in exclusivist terms. Casesfrom the nineteenth and early twentieth century regularly asserted that lawsuitsbrought by the federal government in federal court for civil penalties inviolation of federal statutes – in other words, lawsuits premised on what todaywould be called “public rights” – qualified as “suits at common law” thataccordingly entitled the defendant to a jury under the Seventh Amendment.139

The first case that upheld the constitutionality of a federal statute thattransferred adjudication from trial courts to an administrative agency withoutaffording a jury– a laconic decision by Justice Holmes in the 1921 case of Blockv. Hirsh– did so on the grounds that there existed an “exigency” on accountof the First World War that justified the “suspension of [the] ordinaryremedies” of trial by jury.140 The “publicly notorious . . . emergency” thatCongress sought to cure was inadequate rental properties in the District ofColumbia to accommodate employees of the federal government, and the actaddressed the problem by permitting tenants to remain in possession at thesame rent they had been paying so long as the rent paid was “reasonable” inthe determination of a housing commission established by the act.141

The bulk of Justice Holmes’ opinion addressed not the SeventhAmendment, but whether the rent control statute violated due process,constituted a taking without just compensation, and violated the contractsclause. Only after concluding that “a public exigency will justify the legislaturein restricting property rights in land to a certain extent withoutcompensation”142 did the Court, in its final paragraph, address the SeventhAmendment. It cursorily concluded that “[i]f the power of the Commissionestablished by the statute to regulate the relation is established, as we think it


143Id. at 158.

144Holmes’ proposition here is not self-evident because the Seventh Amendment is a constitutionallimitation that is independent of due process, the takings clause, and the contracts clause. Accordingly, themere fact that a statute does not violate these other clauses does not really tell us anything about whetherthe Seventh Amendment is violated. For a similar argument, see Ellen E. Sward, Legislative Courts, ArticleIII, and the Seventh Amendment, 77 N.C, L. REV. 1037, 1041-42, 1099-1105 (1999).

145Block, 256 U.S. at 158.

146Id. (emphasis supplied). In fact, however, questions apart whether the rent was “reasonable” also couldarise under the act. Because the act provided that the owner shall have possession following 30 daysnotice “for actual and bona fide occupancy by himself, or his wife, children or dependent,” id. at 154, thequestion could arise as to whether an owner seeking to displace a tenant on this ground indeed was goingto occupy the residence. Indeed, the owner in the Block case had alleged that he wanted the premises forhis own use and the tenant had denied this. Id. at 156.

147Id. at 158.

148301 U.S. 1 (1937).

is, by what we have said, this objection [based on the Seventh Amendment]amounts to little. To regulate the relation and to decide the facts affecting itare hardly separable.”143 In other words, so long as constitutional limitationsapart from the Seventh Amendment did not render the statute’s substantiveprovisions unconstitutional, the Seventh Amendment was not violated either.To this not-very self-evident proposition144 Holmes added two more briefjustifications. The very emergency justifying the act’s substantive provisionsequally excuse its summary procedures: because “[a] part of the exigency is tosecure a speedy and summary administration of the law”145 the housingemergency also justified dispensing with jury trials. Finally, in any event,Holmes wrote that there wasn’t much in the way of jury fact-finding was beingdisplaced, for “[w]hile the act is in force there is little to decide except whether therent allowed is reasonable . . .”146

In short, the Block decision upheld what it deemed to be only a limitedincursion by an administrative agency into the jury’s fact-finding domain, anddid so on the narrow ground that the statute at issue aimed to remedy anational emergency. Conversely, Block understood that a jury right to hear thetype of issues that were being decided by an administrative agency was amonga citizen’s “ordinary remedies.”147

The next two Supreme Court decisions upholding administrativeagencies’ fact-finding powers did so by means of rationales wholly consistentwith exclusivism. The 1937 case decision of NRLB v. Jones & Laughlin SteelCorp.,148 best known for its commerce clause holding, also decided that theNational Labor Relations Board’s power to decide whether an unfair laborpractice had been committed and to order backpay did not violate the SeventhAmendment. The Court reasoned that the NLRB’s power did not trench atall on the jury’s role guarded by the Seventh Amendment. Said the Jones &Laughlin Steel Court,

[t]he instant case is not a suit at common law or in the nature ofsuch a suit. The proceeding is one unknown to the common law.


149Id. at 48-9.

150The NLRB Court provided a second rationale that also was consistent with exclusivism. The SeventhAmendment’s application to cases at “common law” long had been understood to mean that SeventhAmendment rights did not attach to cases in equity, and the NLRB Court ruled that the case brought bythe NLRB was analogous to a case in equity rather than law. Id. at 48-9. The Court further held that anymonetary relief via orders of backpay were merely “incident[al] to (nonlegal relief) even though damagesmight have been recovered in an action at law.” Id.

151382 U.S. 323 (1966) (bankruptcy judges can decide voidable preferences without a jury). 152Id. at 336.

153Id.

154See Parsons v. Bedford, 3 Pet. 433, 446-47 (1830).

155Id. at 336-38.

156415 U.S. 189 (1974).

157301 U.S. at 48-9.

It is a statutory proceeding.149

Because the Seventh Amendment by its terms applies only to “Suits atcommon law,” the Jones & Laughlin Steel Court’s analysis meant that theNLRB was performing functions that did not fall under the SeventhAmendment.150

The 1966 decision in Katchen v. Landy,151 which upheld the power of abankruptcy court, sitting without a jury, to adjudicate issues that would havebeen entitled to a jury trial if the trustee had pressed the issues in a separatelawsuit in federal court,152 similarly came to its conclusion with a rationalethoroughly consistent with exclusivism. The Court reasoned that what wouldhave been a legal claim if pursued on its own is “convert[ed]” into an equitableclaim when it arises “as part of the process of allowance and disallowance ofclaims” in bankruptcy.153 Because the Seventh Amendment does not attach toequitable proceedings – its reference to “Suits at common law” long has beenunderstood to mean that the Seventh Amendment applies to suits in “law” butnot in “equity”154 – the Katchen Court readily concluded that the SeventhAmendment did not allocate power to the jury to hear voidable preferenceclaims raised in the context of a bankruptcy proceeding.155 This reasoning iswholly consistent with exclusivism insofar as the power exercised by thebankruptcy judge did not overlap at all with the jury’s Seventh Amendmentgranted powers.

Two cases in 1974 radically shifted the rationale for agencies’ powersto engage in adjudicatory fact-finding and, in the process, created – or,perhaps more accurately, acknowledged – a regime of concurrence. Thequestion in Curtis v. Loether156 was whether the Seventh Amendment entitledlitigants to a jury trial in actions for damages under the Civil Rights Act’s fairhousing provisions. According to the logic of Jones & Laughlin Steel the answershould have been no because the housing right at issue in Curtis was“unknown to the common law” and instead was “a statutory proceeding.”157

In finding that litigants were entitled to a jury, Curtis radically retooled Jones &


158415 U.S. at 194-95.

159Id.

160416 U.S. 363 (1974).

161Id. at 383.

162Id. (stating that “jury trials would be incompatible with the whole concept of administrativeadjudication”).

163Id. at 383. See also Atlas Roofing Co. Inc. v. Occupational Safety and Health Review Commission, 430U.S. 442, 455 (1977) (affirming this rule).

Laughlin Steel, asserting that the case “merely stands for the proposition thatthe Seventh Amendment is generally inapplicable in administrativeproceedings, where jury trials would be incompatible with the whole conceptof administrative adjudication and would substantially interfere with theNLRB’s role in the statutory scheme.”158

Three interrelated aspects of Curtis merit notice. First, whereas Jones& Laughlin justified its conclusion on the nature of the legal right at issue (thatthe legal right was statutory rather than common law based), Curtis’s holdinginstead turned on where the litigation occurred: no jury in administrativeproceedings, jury in federal courts. Second, this shift created a regime ofconcurrence: under Curtis’ approach, the identical legal right could be decidedby either a jury-free administrative agency or a court with jury. Third, Curtisjustified administrative agencies’ adjudicatory powers on the basis of nakedpragmatism: the Seventh Amendment is “generally inapplicable toadministrative proceedings” because “jury trials would be incompatible with thewhole concept of administrative adjudication.”159

The same three elements are on display in the 1974 case of Pernell v.Southall Realty.160 Like the Curtis decision, Pernell re-rationalized an earlierdecision – this time Block v. Hirsh – that had served to cabin agencies’adjudicatory powers vis-a-vis juries. Whereas Block had upheld the agency’sjury-free adjudicatory powers on the ground that exigent circumstancesjustified an exception to a litigant’s “ordinary remedies,” Pernell recharacterizedBlock as standing for a business-as-usual principle, stating that the case “merelystands for the principle that the Seventh Amendment is generally inapplicablein administrative proceedings . . .”161 As in Curtis, the Seventh Amendment’sinapplicability was justified purely on practical grounds.162 Finally, Pernellexplicitly acknowledged the regime of concurrence it had created. Pernell ruledthat the Seventh Amendment required a jury to adjudicate the right topossession of real property at issue in the case because the adjudication tookplace in an ordinary federal court. The Court went on to observe that “[w]emay assume that the Seventh Amendment would not be a bar to acongressional effort to entrust landlord-tenant disputes, including those overthe right to possession, to an administrative agency.”163

The Pernell decision thus expressly acknowledges that the identicaldispute could be resolved either by a jury (before a court) or a jury-freeadministrative agency. Concurrence was fully acknowledged. As this section’s


164See Caleb Nelson, Adjudication in the Political Branches, 107 COLUM. L. REV. 559, 565 (2007). Nelson;Bator; CFTC v. Schor, 478 U.S. 833 (1986) (acknowledging that “[o]n its face, Article III, §1, seems toprohibit the vesting of any judicial functions in either the Legislative or the Executive Branch.”) (Brennan,J., dissenting) (emphasis in original); Cf. Monaghan, supra note 167, at 868 (“Article III might (at least asan original matter) have been understood to require that if any adjudication by federal tribunals occurs,it must occur in Article III courts”).

165Id. at 868.

166As will be discussed, however, two notable scholarly tomes recently have argued that non-article IIIinstitutions do not in fact exercise constitutional “judicial power.”

167See Paul M. Bator, The Constitution as Architecture: Legislative and Administrative Courts Under Article III, 65IND. L. J. 233, 242 (1990); see also Henry P. Monaghan, Article III and Supranational Judicial Review, 107COLUM. L. REV.833, 868 (2007) (noting that “significant federal adjudication [can] occur in non-ArticleIII tribunals.”).

tour through the case law shows, though, such a forthright acknowledgmentwas a long time in the making.

C. Adjudicatory Jurisdiction of Article III and non-Article III Courts.Article III’s language that the “judicial Power of the United States, shall bevested in one supreme Court, and in such inferior Courts as the Congress mayfrom time to time ordain and establish” is readily prone to being understoodto mean that the federal judicial power only can be vested in Article IIIcourts,164 i.e., in an exclusivist manner. But, as Professor Monaghan writes,

[t]he expanding national government and the rapidly expandingnational domain quickly rendered any such conception untenable.From the very beginning, the Court recognized ‘exceptions,’ i.e., thatsignificant federal adjudication could occur in non-Article IIItribunals.165

As the following discussion shows, Professor Mongahan’s perspicaciousobservation is correct save for one thing: the Supreme Court long denied thatfederal adjudication was occurring outside of article III courts, acknowledgingonly in the 1960s that non-article III tribunals could exercise federaljurisdiction. In other words, the historical trajectory noted in the movementfrom Marbury to Ames recurs here: initial efforts to square the non-Article IIItribunals with an exclusivist interpretation of Article III ultimately gave wayto the recognition that non-Article III institutions share concurrentadjudicatory power with Article III courts. In short, Professor Monaghanappears to have anachronistically read today’s acceptance of concurrence backinto the earlier caselaw, obscuring the Supreme Court’s initial andlongstanding reluctance to abandon exclusivism. Just as Ames rejected anexclusivist construction of the Constitution’s grants of original jurisdiction tothe Supreme Court, contemporary doctrine has rejected an exclusivistinterpretation under which only Article III courts can exercise “judicialPower,”166 opting instead for a system in which “article I courts and the articleIII courts frequently exercise a concurrent jurisdiction or otherwise shareportions of the judicial business.”167

A circuit court case decided early in our country’s history – the 1803


1687 U.S. (3 Cranch) 159 (1805) (circuit court opinions, 1803). The More case was brought to my attentionby an intriguing article by Professor Gary Lawson. See Lawson, supra note ?, at 879-86.

169See U.S. CONST. ART. III, §1.

170More, 7 U.S. at 161 n.*.

171Id.; see also O’Donoghue v. United States, 289 U.S. 516 (1933) (holding that judges of the District ofColumbia’s Supreme Court and Court of Appeals are constitutionally protected from having theircompensation reduced).

172Incontrovertible evidence of the proposition above in text is that the United States Supreme Courtreasoned in just this fashion 170 years after More was decided, ruling that Congress had the power tocreate a non-article III court known as the Superior Court of the District of Columbia that could trycriminal cases for violation of federal law but that the court’s judges enjoyed neither life tenure nor salaryprotection since they did not sit on an article III court. See Palmore v. United States, 411 U.S. 389 (1973),discussed infra. Gary Lawson also has pointed out this relationship between the More and Palmoredecisions. See Lawson, supra note ?, at 893.

17326 U.S. (1 Pet.) 511 (1828).

decision in United States v. More168 – nicely illustrates the exclusivist approachfirst taken by American courts. An 1801 federal statute allowed justices of thepeace for the District of Columbia to collect fees from litigants for the judicialservices they performed. Though this provision was repealed a year later,justice of the peace Benjamin More continued to collect fees. When More wasindicted, he contended that the 1802 repeal was unconstitutional because itsought to diminish the compensation of a federal judge.169 The Circuit Courtof the District of Columbia agreed. Dismissing the indictment, the court saidas follows:

[i]t is difficult to conceive how a magistrate can lawfully sit injudgment, exercising judicial powers, and enforcing his judgmentsby process of law, without holding a court. I consider such a court,thus exercising a part of the judicial power of the United States, asan inferior court, and the justice of the peace as the judge of thatcourt.170

The circuit court’s holding was predicated on an unspoken assumption ofexclusivity. Having decided that the justice of the peace served on a federallycreated court that acted judicially, the circuit court reflexively concluded thatthe court therefore was an Article III tribunal (that accordingly enjoyedprotection against diminishment of compensation, thereby rendering the 1802repeal unconstitutional).171 Without the assumption of exclusivity, the fact thatthe justice of the peace served on a federal court exercising judicial powerwould not automatically have meant it was an Article III court.172

Exclusivist assumptions carried though to Supreme Court decisionsuntil well into the twentieth century. One of the Court’s most influentialdiscussions concerning non-Article III federal courts is found in the 1828decision of American Insurance Co. v. Canter.173 The case concerned a shipcarrying a large quantity of cotton that had been stranded and lost on the coastof the territory of Florida. A portion of the cotton had been saved by rescueships, and the question considered in the decision was whether a federally


174The court that had heard the salvage claim had been created by the Florida territorial legislaturepursuant to a federal statute that had empowered the legislature to do so. See Canter, 26 U.S. at 20-21.Though the petitioner argued that “Congress cannot vest admiralty jurisdiction in Courts crated by theterritorial legislature,” id. at 25, the Court quite reasonably collapsed the distinction between delegator anddelegee and instead analyzed as if Congress itself had directly created the salvage court in question. Seeid. at 24 and discussion above in text. Professor Lawson treats Canter’s discussion as mere dictumbecause the salvage court had been created by the territorial legislature rather than by Congress, seeLawson, supra note ?, at 888, 892, but he offers no reason for believing that the delegee (the territoriallegislature) should have more power to create a non-article III court than the delegator (Congress). Inany event, as Lawson himself notes, subsequent Supreme Court decisions treated Canter’s discussion asa holding, not dicta. See id. at 892.

175Canter, 26 U.S. at 24(emphasis supplied).

176See supra page 14.

177Id.

created territorial court was competent to adjudicate salvage cases.174 AsCanter acknowledged, salvage falls within the admiralty jurisdiction that itselfis part of what Article III calls the “judicial Power of the United States.” Yetthe judges on the territorial courts held “their offices for four years,” not thelife tenure guaranteed by Article III. Canter held that the territorial courts were“not constitutional courts” but that they nonetheless had jurisdiction to hearthe claims.175

Is it fair to characterize Canter as an example of the Court’s resistanceto concurrence? After all, Canter could be said to be an instance of same-effect concurrence insofar as it concurrent adjudicatory powers as betweenArticle III courts and territorial courts. This is true, but it seems to me thatCanter is most persuasively characterized as an instance where the Courtsignaled its preference for exclusivism but was simply unable to embrace theimplications that all territorial courts be declared unconstitutional.176 In myview, Canter’s same-effect rationale reflects an effort to reclaim exclusivismrather than an embrace of concurrence. I come to this conclusion on the basisof the utterly unconvincing nature of its argument that the territorial courtswere exercising something other than Article III judicial power. Chief JusticeMarshall upheld the territorial courts in Canter on the rationale that they were

not constitutional Courts, in which the judicial power conferred bythe Constitution on the general government can be deposited. Theyare incapable of receiving it . . . . The jurisdiction with which they are invested,is not a part of that judicial power which is defined in the Third Article of theConstitution, but is conferred by Congress, in the execution of thosegeneral powers which that body possesses over the territories of theUnited States.177

Exclusivism thus was the conceptual bedrock of the Canter decision: theFlorida salvage courts could do what they did, despite their being manned byjudges without life tenure, only because their judicial powers did not qualifyas part of the “judicial Power of the United States.” Only Article III courts


178To be clear, I mean simply to characterize Canter’s reasoning from the internal perspective of its authors,not to praise it. For a particularly trenchant critique of this aspect of Canter’s reasoning, see Bator, supranote ?, at 241-42; see also Lawson, supra note ?, at 887-93; REDISH, supra note 20, at 36-9. Below Idiscuss Justice Harlan’s radical reinterpretation of this part of Carter’s rationale. See infra page 38.

179Consider also the well-known case of Martin v. Hunter’s Lessee, where the Court observed that “Congresscannot vest any portion of the judicial power of the United States” in institutions aside from courts thatit had “ordained and established” under article III. Similar reasoning is present in Ex parte Milligan, 71U.S. (4 Wall.) 2, 121 (1866), where the Court concluded that “ no part of judicial power of the countrywas conferred on” military commissions “because the Constitution expressly vests it ‘in one supremecourt and such inferior courts as the Congress may from time to time ordain and establish,’ and it is notpretended that the commission was a court ordained and established by Congress.”

18059 U.S. (18 How.) 272 (1856).

181Id. at 274-75.

182Id. at 275.

183See Monaghan, supra note 167, at 871 (noting that Murray’s Lessee “still remains the fountainhead forthe modern public rights doctrine”); Nelson, supra note 164, at 586-90.

could exercise that power.178 Though the conclusion that territorial courts werenot Article III courts readily explained why territorial judges could havelimited tenure, the Chief Justice’s major premise consists of little more thanipse dixit: unexplained was why and in what respect adjudications ofcontroversies falling within the jurisdiction of Article III courts by federallycreated territorial courts were not part of the federal judicial power. Anunstated assumption of exclusivity, of the sort that animated Marbury, quiteclearly was doing the work.

The other great opinions of the nineteenth century upholding non-Article III federal tribunals similarly justified their holdings on groundsformally consistent with exclusivism, for they too premised their holdings onthe proposition that the non-Article III tribunals were not exercising federaljudicial power.179 Consider the important and influential decision of Murray’sLessee v. Hoboken Land & Improvement Co.180 Samuel Swartwout was a federalcollector of customs for the port of New York. Pursuant to an 1820 statute,the treasury department conducted an internal audit and determined thatSwartwout had collected almost $1.4 million more than he had remitted to thegovernment. Under authority of the statute, the solicitor of the treasury issueda “distress warrant” that directed a federal marshal to levy against andthereafter sell certain of Swartwout’s real property to satisfy his debt.181

It was argued in Murray’s Lessee that the marshal’s sale of Swartwout’sproperty was unconstitutional because the treasury officials’ acts (auditing ofSwartwout’s account, ascertaining its balance, and issuing the distress warrant)constituted the exercise of United States “judicial power” that only could havebeen undertaken by an Article III court.182 In upholding the treasury official’sact, Murray’s Lessee famously announced what has become known as the publicrights doctrine.183 At its core, the public rights doctrine is an example ofconcurrence. In the Court’s own words,

[t]here are matters, involving public rights, which may be presentedin such form that the judicial power is capable of acting on them,


18459 U.S. at 284.

185Id. at 275.

186Id. at 281.

187Id.

188370 U.S. 530, reh’g denied, 371 U.S. 854 (1962).

189 Id. at 545 & n. 13.

190Id. at 544-45.

and which are susceptible of judicial determination, but whichcongress may or may not bring within the cognizance of the courtsof the United States, as it may deem proper.184

The doctrine is an exemplar of concurrence because, under it, public rightsmay be adjudicated in Article III tribunals or Article I tribunals. Like theCanter decision, however, Murray’s Lessee upheld this concurrence whileformally holding fast to exclusivist justifications. After all, Murray’s Lessee“admitted” that “if the auditing of [Swartout’s] account, and the ascertainmentof its balance, and the issuing of this process, was an exercise of the judicialpower of the United States, the proceeding was void; for the officers whoperformed these acts could exercise no part of that judicial power.”185 TheCourt upheld de facto concurrence (finding that two different institutions couldundertake the identical act) only by averring that the subject-matter was not“necessarily . . . a judicial controversy”186 though it was something over “whichthe judicial power c[ould] be exerted.”187 In short, an Article III court’s actionswould have constituted the exercise of judicial power, but the treasuryofficial’s identical actions did not. By thus squaring the circle, the Court aimedto make concurrent powers formally consistent with exclusivism.

Exclusivist assumptions began to give way in the twentieth century.The most important initial move was Justice Harlan’s opinion for the Courtin Glidden Co. v. Zdanok,188 in the course of which Harlan radically restatedChief Justice Marshall’s reasoning in the Canter decision. Gliddenacknowledged Chief Justice Marshall’s averment that territorial courts werenot courts “in which the judicial power conferred by the Constitution . . . canbe deposited” and were “incapable of receiving” the judicial power of whichthe Constitution spoke, but Justice Harlan went on to state that

[f]ar from being ‘incapable of receiving’ federal-questionjurisdiction, the territorial courts have long exercised a jurisdictioncommensurate in this regard with that of the regular federal courts . . .189

Though surely sounding like a significant break with the past, Justice Harlanlabored to show that his and Marshall’s words in Canter were whollyconsistent:

[a]ll the Chief Justice meant . . . is that in the territories[,] cases andcontroversies falling within the enumeration of Article III may be heard anddecided in courts constituted without regard to the limitations ofthat article . . .190

But try as he may, Justice Harlan could not obscure the milestone his words


191Id. at 545.

192Id. (emphasis supplied).

193478 U.S. 833 (1986). The very different approach to understanding non-Article III courts that wasadvanced by Justice Brennan in Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,, 458 U.S. 50(1982), also acknowledged non-exclusivity. As Justice Brennan later described his approach in theMarathon case, although “Article III, §1, seems to prohibit the vesting of any judicial functions in eitherthe Legislative or the Executive Branch . . .[t]he Court has, however, recognized three narrow exceptionsto the otherwise absolute mandate of Article III . . .” Schor, 478 U.S. at 859 (Brennan, J., dissenting)(emphasis in original).

194Id. at 851.

195Id.at 853.

196Id. at 857.

197Monaghan, supra note 167, at 873 (emphasis supplied).

198Merrill, Rethinking, supra note 54, 198, at 2098 (quoting U.S. Const. Art. I, § 1) (emphasis supplied).

constituted. For the first time, the Supreme Court had explicitly acknowledgedthat non-Article III courts could “hear” and “decide” the same sort of “casesand controversies” that fall under the federal judicial power and thataccordingly could be heard in Article III courts.191 The jurisdiction of non-Article III courts could be “commensurate . . . with that of the regular federalcourt,”192 wrote Justice Harlan. Perhaps the use of “commensurate” wasintended to leave room for concluding that the non-Article court’s jurisdictionwas not precisely identical to an Article III court’s powers, but Harlan did noteven try to explain in what respects the two institutions’ adjudicatory powersdiffered. For all practical intents and purposes, Justice Harlan had formallyembraced concurrence.

By the end of the twentieth century, the Supreme Court had come tofully accept non-exclusivity in relation to the federal judicial power. This ismost clearly seen in the decision of CFTC v. Schor.193 Going the final stepbeyond Glidden’s acknowledgment that non-Article III courts may havejurisdiction “commensurate” with the jurisdiction of Article III courts, Schorobserved that Congress could “authorize the adjudication of Article IIIbusiness in a non-Article III tribunal.”194 Its holding was consistent with thisobservation: though the counterclaim at issue in the case was a “‘private’ rightfor which state law provide[d] the rule of decision,” and which accordinglywas “a claim of the kind assumed to be at the ‘core’ of matters normallyreserved to Article III courts,”195 Schor rejected the view that a “bright line rule”confined such claims to Article III courts196 and upheld the non-Article IIIcourt’s exercise of jurisdiction. Surely Professor Monaghan is correct whenhe speaks of today’s “system of shared adjudication between agencies andArticle III courts.”197

D. Legislative Power: Congress and Agencies. Early Supreme Courtdecisions and early treatises understood Article I, Section I’s declaration that“[a]ll legislative Powers herein granted shall be vested in a Congress”198 inexclusivist terms: that only Congress may legislate. The threat to congressionalexclusivity in the early days came in the form of apparent congressional


199In none of the early cases did the Court strike down a federal statute on non-delegation grounds. Fora detailed discussion of the early cases, see Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV.327, 353-72 (2002).

200143 U.S. 649 (1892).

201Id. at 692.

20223 U.S. (10 Wheat) 1, 46 (1825).

203Id. at 42. Chief Justice Marshall’s formulation here concededly is ambiguous as regards the questionof whether legislative power can be delegated: it might be thought that he means to say that powers thatare “strictly and exclusively legislative” cannot be delegated, but that matters that are legislative incharacter that are but not “exclusively legislative” may be delegated. When read context, however, it isclear that the Chief Justice meant to contrast “strictly and exclusively legislative” with matters that are non-legislative yet still may be undertaken by the Congress, not with matters that are legislative and yetdelegatable. See id. at 43 (immediate sentence after sentence quoted above in text reads as follows: “ButCongress may certainly delegate to others, powers which the legislature may rightfully exercise itself.”);see Lawson, supra note 199, at 358-59 (similarly concluding).

204Thomas Cooley, Constitutional Limitations 224 (8th ed. 1927), quoted in Merrill, supra note 54, 198, at2112 & n. 60.

205See Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 45-7 (1985).

206See Merrill, supra note 54, 198, at 2119.

207531 U.S. 457 (2001).

delegations of legislative power to other governmental institutions. Theresponse to such actions (rhetorically, at least199) – which, if allowed, wouldhave created a concurrent system in which institutions apart from Congressalso would have had legislative power – was unequivocal. Speaking ofdelegations to the executive branch, the 1892 decision of Marshall Field & Co.v. Clark200 asserted as follows: “[t]hat congress cannot delegate legislativepower to the president is a principle universally recognized as vital to theintegrity and maintenance of the system of government ordained by theconstitution.”201 Addressing legislative delegations to courts, Chief JusticeMarshall stated in the 1825 decision of Wayman v. Southard202 that “[i]t will notbe contended that Congress can delegate to the Courts, or to any othertribunals, powers which are strictly and exclusively legislative.”203 Speakingmore generally, Thomas Cooley’s nineteenth century treatise declares that“[o]ne of the settled maxims in constitutional law is, that the power conferredupon the legislature to make laws cannot be delegated by that department toany other body or authority.”204

Virtually everyone today acknowledges, however, that, as a practicalmatter, these nineteenth century statements of congressional exclusivism donot describe contemporary American government. An extraordinaryproportion of contemporary lawmaking occurs in the extra-congressionalgovernmental entities known as administrative agencies.205

As a formal doctrinal matter, though, contemporary constitutionaldoctrine has not been willing to part with the myth of exclusivity. The non-delegation doctrine still purports to absolutely prohibit the delegation oflegislative power.206 The Court’s most recent non-delegation decision, Whitmanv. American Trucking Associations, Inc.,207 is representative of contemporary


208Earlier caselaw formulated the constraint on Congress’ ability to delegate differently. Chief JusticeMarshall stated that “[t]he line has not been exactly drawn which separates those important subject, whichmust be etnirely regulated by the legislature itself, from those of less interest, in which a general provisionmay be made, and power given to those who are to act under such general provisions to fill up thedetails.” Wayman, 23 U.S. (10 Wheat.) at 43. Today’s “intelligible principle” formulation originated in the1935 decision of J.W. Hampton, Jr. & Co. V. United States, 276 U.S. 394, 409 (1935). Scholars debateto what degree Hampton’s formulation represented a change in the doctrine. Compare Lawson, supra note199, at 368-72 (arguing against the view that Hampton altered the doctrine announced by Chief JusticeMarshall) with Posner & Vermeule, supra note 227, at 1738-40 (concluding that “[t]he critical passagefrom Wayman v. Southard, then, adopts a different theory than the one modern nondelegationproponents have read into it”).

209Id. at 472 (emphasis supplied). For other cases to similar effect, see, e.g., Touby v. United States, 500U.S. 160, 165 (1991); United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932); J.W.Hampton, Jr., & Co. v. United States, 276 U.S. 394, 407 (1928).

210See, e.g., id. at 472; Merrill, supra note 54, 198, at 2119.

211The Court has invalidated only two statutes on nondelegation grounds, both in the same year. So, inCass Sunstein’s words, the doctrine has “had one good year, and 211 bad ones (and counting).” Cass R.Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000). Thomas Merrill recently has arguedthat “legislative power” entails “the power to make rules for the governance of society,” thatadministrative agencies exercise precisely this power today, and that they properly do so as long asCongress explicitly delegates them this power. Merrill, supra note 54, 198, at 2120. Gary Lawsondescribes the status quo as one where the Court has found the intelligible principle standard to be satisfiedby“any collection of words that Congress chose to string together.” Lawson, supra note 199, at 371. Otherscholars who have noted that the non-delegation doctrine fails to curb delegations of de facto lawmakingauthority to agencies include David Schoenbrod and Marty Redish. See DAVID SCHOENBROD, POWERWITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION; REDISH,supra note 20, at 135-61.

212See NBC v. United States, 319 U.S. 190, 225-26 (1943).

213Yakus v. United States, 321 U.S. 414, 427 (1944).

214Whitman, 531 U.S. at 473.

doctrine208 when it asserts that

[i]n a delegation challenge, the constitutional question is whether thestatute has delegated legislative power to the agency. Article I, §1,of the Constitution vests ‘[a]ll legislative Powers herein granted . .. in a Congress of the United States.’ This text permits no delegation ofthose powers.209

How can this exclusivist rationale be harmonized with thecontemporary reality of widespread rule-making by agencies? The Court hasequated legislative power with discretion and has concluded that no legislativepower is delegated so long as Congress provides an “intelligible principle”that cabins the administrative agency’s decisionmaking.210 But, as all legalscholars agree, the Court has applied this standard in an extraordinarily loosefashion that in fact has allowed administrative agencies to act with virtuallyunfettered discretion.211 As explained above in Part One, statutes that instructagencies to regulate on the basis of “public interest, convenience, ornecessity,”212 to set “fair and equitable prices,”213 or to set ambient air qualitystandards that are “requisite to protect the public health”214 all have passedmuster. Indeed, only two times in our nation’s history has the Court struckdown statutes on non-delegation grounds – and both occurred in 1935 before


215Cass Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000).

216Id.

217Whitman, 531 U.S. at 488 (Stevens, J., concurring in part and dissenting in part, joined by J. Souter).

218Consensus breaks down as regards what if anything should be done about this: more on this soon. Trueeven of Posner/Vermeule?

219See id. (acknowledging that “there is language in our opinions that supports the Court’s articulation ofour holding . . .” and citing to a raft of such cases).

220See Posner & Vermeule, supra note 227, at 1735-36.

221Act of September 29, 1789, 1 Stat. 95, cited in Posner & Vermeule, supra note 227, at 1735.

the Justices’ famous “switch in time.”215 Cass Sunstein puts it nicely when hesays that “it is more accurate, speaking purely descriptively, to see 1935 as thereal anomaly. We might say that the conventional [non-delegation] doctrinehas had one good year, and 211 bad ones (and counting).”216

As a formal matter, defining legislative power as it has permits theCourt to continue to assert that no legislative power has been delegated. Asa pragmatic matter, however, by construing the non-delegation doctrine’s“intelligible principle” so broadly, the Court has sanctioned a regime ofconcurrence under which more than one governmental entity – Congress andagencies – exercise de facto legislative power. This is what has led JusticesStevens and Souter to criticize the Court for “pretend[ing] . . . that theauthority delegated” to administrative agencies “is somehow not ‘legislativepower’,” advocating instead that “it would be both wiser and more faithful towhat we have actually done in delegation cases to admit that agencyrulemaking authority is ‘legislative power.’”217 To use this Article’s terminology,Justices Stevens and Souter argue that the federal legislative power today isconcurrently exercised by Congress and administrative agencies.

It is fair to say that virtually the entire scholarly community is of theview that, as a purely descriptive matter, Justices Stevens and Souter have thebetter of the argument: it is widely agreed that the Court’s expansiveinterpretation of “intelligible principle” means that agencies exercise de factolegislative power.218 This raises an interesting question: why does the currentmajority continue to cling to the exclusivist rationale that no legislative powerhas been, nor can be, delegated? Precedent provides a large part of theanswer: as Justices Stevens and Souter acknowledge, the Court’s past opinionshave uniformly relied on exclusivism.219

But that only pushes back the question, for then it must be asked whyearlier Courts adopted the exclusivist assumption that only Congress couldexercise legislative power. Answering this question is complicated by the factthat, as others have pointed out, early Congresses enacted statutes that appearto have delegated lawmaking power to the executive and judicial branches:220

one statute provided for military pensions “under such regulations as thePresident of the United States may direct,”221 another authorized members ofthe executive branch to license “any proper persons” to trade with Indian


222Act of July 22, 1790, 1 Stat. 137, 137, cited in Posner & Vermeule, supra note 227, at 1735.

223Act of September 24, 1789, 1 Stat. 73, 83, cited in Posner & Vermeule, supra note 227, at 1735.

224not unique: similar wrt Story and jury’s role vis-a-vis the law.

225This is frequently, but not wholly, overlooked. Professor Marty Redish and Gary Lawson, for example,both have discussed these sorts of delegations. See Redish, supra note 227, at 140-41; Lawson, supra note199, at 375-78.

226See, e.g., National Society of Professional Engineers v. United States, 435 U.S. 679, 688 (1978) .

227See Eric A. Posner & Adrian Vermeule, Interring the Non-Delegation Doctrine, 69 U. CHI. L. REV. 1721,1731 (2002) (noting this); see also Margaret H. Lemos, The Other Delegate, 81 S. Cal. L. Rev. Xx(forthcoming 2008). It should not noted, though, that the Court has applied the non-delegation doctrinein the rare instances where Congress has delegated rule-making authority to courts, as with the RulesEnabling Act and the Sentencing Reform Act, which created the United States Sentencing Commissionas an independent body within the Judicial Branch. See Mistretta v. United States, 488 U.S. 361, 386-90(1989) (analyzing Sentencing Commission); Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 (1941) (upholdingRules Enabling Act). For a defense of the position that there should be constraints on legislativedelegations to the executive branch but not to the judiciary that would keep Congress from enacting vaguestatutes, see MARTIN H. REDISH, THE CONSTITUTION AS POLITICAL STRUCTURE 140-41 (1995).

228Rosen, NW U L. REv.

tribes “under such rules and regulations as the President may prescribe,”222 andyet another authorized courts to “make and establish all necessary rules for theorderly conducting of business in the said courts . . .”223 In other words, theearly Supreme Court cases quoted above that flatly asserted that Congress’legislative power could not be delegated did so in the face of contrary practice.

This means that the “story” regarding the movement from exclusivityto concurrence is a bit different here than elsewhere: the Supreme Court’sinsistence on exclusivity was not a description of what existed at the time, butinstead reflected the Court’s aspiration.224 And indeed, to this day, doctrineformally denies that legislative power can be delegated, asserting that onlyCongress can legislate. This is powerful evidence of the ongoing power ofexclusivist assumptions.

Finally, fully understanding the degree to which institutions apart fromCongress exercise de facto if not actual legislative power requires that we notconfine our inquiry to administrative agencies. Although frequentlyoverlooked, there is yet another governmental institution outside of Congresswhere significant law-making occurs: courts, particularly when they interpretvague statutes that do not fall under the rule-making aegis of an administrativeagency.225 Our corpus of federal antitrust law is an excellent example, foralmost the entirety of antitrust law is the creation of courts.226

The non-delegation doctrine does not apply at all to the de factodelegations to courts that occur when Congress enacts vague statutorylanguage without delegating rule-making authority to an executive agency.227

In such circumstances, courts in effect generate the law when they decidequestions on a case-by-case basis – what is variously called statutoryinterpretation or federal common law.228 Constitutional doctrine imposesvirtually no limits on this sort of congressional delegation. Though the void-for-vagueness doctrine at one point was conceptualized inter alia as an anti-delegation separation of powers principle, today it almost exclusively is treated


229See Colorado v. Hill, 530 U.S. 703, 732 (2000) (“A statute can be impermissibly vague for either of twoindependent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunityto understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary anddiscriminatory enforcement.”). While some earlier void-for-vagueness cases conceptualized the doctrineas ameliorating legislative delegations of authority to courts and juries, see, e.g., United States v. Ragen,314 U.S. 513, 523-24 (1942) (holding that the statute was “not vague nor does it delegate policy makingpower to either court or jury”); Cline v. Frink Dairy, Co., 274 U.S. 445, 457 (1927), this anti-delegationrationale has “largely been abandoned in favor of . . . preventing arbitrary and discriminatory lawenforcement.” Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 AM.J. CRIM. L. 279, 282 (2003). One modern Supreme Court decision has revived the non-delegation concept,but assimilated it under the concern of arbitrary enforcement. See Grayned v. City of Rockford, 408 U.S.104, 108-9 (1972) (noting that a “vague law impermissibly delegates basic policy matters to policemen,judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitraryand discriminatory application”). No recent case has relied on the delegation concept as a basis forfinding a law to be void for vagueness.

230An influential and excellent student note written by Professor Amsterdam both noted this and profferedan explanation as to why the void-for-vagueness doctrine primarily limited states rather than the federalgovernment. See Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. PA. L. REV. 67, 82-86(1960). A recent article confirms that this trend has continued. See Goldsmith, Revisited, supra note 229,at 290.

231See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982)(“perhapsthe most important factor affecting the clarity that the Constitution demands of a law is whether itthreatens to inhibit the exercise of constitutionally protected rights”).

232See Ackerman & Golove, supra note 29, at xx.

as a due process principle designed to provide notice and to ensure non-arbitrary enforcement.229 Further, as a practical matter, the void-for-vaguenessdoctrine primarily has been applied to state laws,230 and is limited almostexclusively to the criminal and first amendment contexts.231

E. Some other Contexts. The trajectory of exclusivity to concurrenceappears in other doctrinal contexts. Professors Ackerman and Golove haveshown that Congress and the President understood originally believed that acertain class of international agreements only could be created by the treaty,and that it was only in the mid-twentieth century that Congress and thePresident came to believe that treaties and Congressional-ExecutiveAgreements were wholly “interchangeable,” i.e., that they were wholly (orvirtually wholly) concurrent.232[To complete: Gibbons v. Ogden to Cooley;horizontal federalism/Story’s exclusivism to Hague overlap]

III. HOW AND WHY CONCURRENCE IS CREATEDPart II explained that exclusivism typically is the starting assumption.

This Part III examines the mechanisms by which concurrence has beencreated as well as the reasons for the shift from exclusivity to concurrence.

A. Mechanisms for Creating Concurrence. As shown in Part II, thejudiciary tends to start with exclusivist assumptions. Consequently, the movetoward concurrence typically has been initiated by non-judicial institutions.Analysis of the contexts in which concurrence is found reveals threemechanisms by which concurrence has been created.

1. Delegation. The first, and probably most important,mechanism for creating concurrence is delegation. Congress explicitly


233See, e.g., 48 U.S.C. §1424b(b) (1988) (vesting the District Court of Guam with “the jurisdiction of adistrict court of the United States . . . and that of a bankruptcy court of the United States”).

234U.S. CONST. ART. I, §8, CL. 9.

235See Brown v. Walker, 161 U.S. 591, 601 (1896).

delegates rule-making authority to agencies and implicitly delegates similarauthority to courts when it enacts open-ended statutory language and decidesagainst tasking agencies with rule-making authority to flesh out the statutorylanguage. Call this “Type 1 delegations.” Type 2 delegations are exemplifiedby congressional delegations of adjudicatory authority to article I courts whenit creates them and vests them with adjudicatory jurisdiction that mirrors thepowers enjoyed by Article III courts.233 The difference between Type 1 andType 2 delegations is as follows: in the former, the delegator delegates its ownauthority, whereas in Type 2 delegations the delegator delegates anotherinstitution’s authority (e.g., a congressional delegation of Article III “judicialPower” to an article I tribunal). The reason for distinguishing between thesetwo types of delegations should be obvious: institutional self-interest operatesas a check against overly extensive Type 1 delegations, but not for Type 2delegations.

A few more observations regarding delegation are in order. First, Type1 delegations typically create concurrence insofar as the delegator retainspower of the sort that it has delegated. Delegation accordingly results in asituation where the delegator and delegatee both have power. The same istrue, mutatis mutandi, for Type 2 delegations.

Second, institutions apart from Congress can delegate. For instance,it is conceivable that the President could delegate some of his powers.

Third, delegation is a mechanism that readily gives rise to (though neednot necessarily give rise to) same-source concurrence.

Fourth, and finally, analyzing the propriety of delegations demandsconsideration not only of the nature of the powers delegated but the identityof the delegatee. In this regard, it may matter whether the delegatee is a pre-existing institution or a newly created institution. It is likely that a pre-existinginstitution may be unable to receive certain powers that a new institutioncould, if, for example, the delegated powers would be incompatible with thepre-existing institution.

2. Inherency. The second mechanism for creatingconcurrence is what might be called “inherency..” Under inherency, a secondinstitution claims that its constitutionally-granted powers extend to authorizingit to undertake the identical act “x” that another institution can undertake.For instance, the Court has held that Congress’ powers to “constituteTribunals inferior to the supreme Court”234 subsumes the power to enactimmunity statutes that are functionally equivalent to the President’s pardonpower.235 Accordingly, inherency is the mechanism most closely associatedwith same-effect concurrence.

3. Inactivity and Initiative-Taking. A third mechanism for


236Justice Jackson alluded to this sort of mechanism in his Steel Seizure concurrence when he observed that“[w]e may say that power to legislate for emergencies belongs in the hands of Congress, but only Congressitself can prevent power from slipping through its fingers.” Youngstown Sheet & Tube Co. v. Sawyer,343 U.S. 579, 654 (1952)(Jackson, J., concurring).

237236 U.S. 459 (1915).

238Id. at 465 (quoting the statute).

239Id. at 466-67.

240Id. at 468.

241Id. at 474.

242The Court also pointed to a past practice of executive withdrawal of public lands. See id. at 469-72.

243Id. at 474. It is worth adding that the Court refused to endorse the President’s effort to ground hispowers to issue the proclamation on his Commander-in-Chief powers, id. at 468, and that much of theCourt’s reasoning arguably turned on the fact that the case concerned public lands, id. at 474-75. For anilluminating analysis of the case, see Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM.L. REV. 1, 44-45 (1993).

creating concurrence is what I call “inactivity and initiative-taking.” Thisoccurs when the one institution with clear authority to undertake act “x” doesnot, and another institution steps in to do so.236 A good illustration is providedby the facts in United States v. Midwest Oil Company.237 An act of Congressprovided that public lands containing petroleum or other mineral oils were tobe “free and open to occupation, exploration, and purchase by citizens of theUnited States . . .”238 After deciding that oil was being extracted too rapidly,with the result that the government soon would be “obliged to repurchase thevery oil that it has practically given away” on account of the American Navy’sincreasing use of fuel, the President issued a proclamation withdrawing therights to extract petroleum from select locations on U.S. public lands.239

Midwest Oil Company continued to extract oil following thePresident’s decree, and was sued for doing so.240 Midwest argued in court thatthe executive order was null insofar as it was not authorized by statute but, tothe contrary, contradicted an act of Congress that permitted petroleumextraction. The Supreme Court upheld the President’s proclamation. TheCourt provided two primary justifications. One was that although “no []express authority has been granted” to the President to withdraw rights to drillfor oil, “there is nothing in the nature of the power exercised which preventsCongress from granting it by implication . . .”241 This rationale reduces to an(implied) delegation justification for the President’s exercise of essentiallylegislative powers, but it is unpersuasive: why should the statute openingpublic lands be understood as impliedly authorizing the President to withdrawthose lands? Far more persuasive is the Court’s second justification.242

“[G]overnment is a practical affair, intended for practical men,” said theCourt, and Congress’s “rules or laws for the disposal of public land arenecessarily general in their nature” such that “[e]mergencies may occur, orconditions may so change as to require that the agent in charge should, in thepublic interest, withhold the land from sale . . .”243 In other words, (perhapsunderstandable) congressional inaction provided the justification forpresidential initiative.


244I would add the caveat that federal courts’ common-lawmaking powers exist only to the extent that theywere not statutorily preempted, as it were, by the Rules of Decision Act. See Martin H. Redish, FederalCommon Law, Political Legitimacy, and the Interpretive Process: An “Institutionalism” Perspective, 83 NW. U. L. REV.761, 795 (1989). This suggests that the Court’s dormant commerce clause may be particularly problematicinsofar as it applies federal law where state law is applicable and hence ought to be applied under theterms of the Rules of Decision Act.

245Prior to Erie, common law was widely understood as being judicial articulation of pre-existing naturallaw rather than create judicial law-making. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938)(asserting that Swift v. Tyson’s sanctioning of federal courts’ common law powers rested on the“fallac[ious]” natural law belief that there is a “transcendental body of law outside of any particular Statebut obligatory within it unless and until changed by statute”); but see Jack Goldsmith & Steven Walt,Erie and the Irrelevance of Legal Positivism, 84 VA. L. REV. 673, 683 (1998)(challenging this account). If,following Erie, there was no “transcendental body” of law that courts merely declared when theyannounced common law, the following question naturally arose: what then was the source of thecommon law rule that a court declared?

246318 U.S. 363 (1943).

247Clearfield Trust, 318 U.S. at 366-67.

The mechanism of “inactivity and initiative-taking” has given rise tothe concurrent rule-making authority as between Congress and federal courtsthat characterizes the dormant commerce clause and most areas of federalcommon law. Congress has unquestioned authority to disallow (or approve)all the state regulations that federal courts have deemed presumptivelyunlawful under the dormant commerce clause. The Supreme Court has notyet pointed to a persuasive doctrinal basis to ground its dormant commerceclause doctrine, so, given the fact that Congress clearly has the power toregulate everything that the Court is addressing, why has the Court proceeded?The answer quite clearly is that the Court deems federal inaction in the faceof discriminatory state laws to be unacceptable, and so it has stepped into thebreach of congressional inaction and taken the initiative.

Although most instances of federal common law-making plausibly canbe justified on the basis of inherency basis – on the ground that Article III’s“judicial Power” encompasses common lawmaking powers244 – what actuallyhas driven the Court to act and create federal common law is better describedby the “inactivity and initiative-taking” paradigm than judicial belief in itsinherent powers to do so. After all, even after Erie’s embrace of legalpositivism, which made it important to identify the source of judge’s power togenerate common law,245 the Supreme Court failed to specify the source of thefederal common law rules it announced, appearing to instead justify its actionson the grounds of necessity. Consider in this regard the Court’s decision inClearfield Trust Co. v. United States,246 which was among the first post-Erie federalcommon law cases. The Court explained that “[t]he rights and duties of theUnited States on commercial paper which it issues are governed by federalrather than local law” and then asserted that “[i]n the absence of an applicableAct of Congress it is for the federal courts to fashion the governing rule of lawaccording to their own standards.”247 The Court wholly neglected, however, toexplain the source of federal courts’ powers to fashion law absent congressionalaction. Consider as well a decision handed down the same day as Erie, Justice


248Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938).

249Though some lower courts and modern commentators similarly have sought to ground federal commonlawmaking power to the Constitution’s jurisdictional grant over interstate controversies, see PAUL BATORET AL, HART & WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 884 (3rd ed. 1988)(gathering sources), the same Erie-based critique leveled at the Court’s reliance on the admiraltyjurisdiction clause applies here: if the diversity grant gives courts adjudicatory jurisdiction but not thepower to fashion substantive common law rules, why should the interstate controversy grant operatedifferently?

250Northwest Airlines v. Transport Workers Union, 451 U.S. 77, 95-96 (1981).

251See, e.g., Ernest A. Young, Preemption at Sea, 67 GEO. WASH. L. REV. 273, 312 (1999).

252353 U.S. 448, 451 (1957).

253Lincoln Mills, 353 U.S. at 451-52 (relying on 29 U.S.C. §185(a)).

254Id. at 452 (stating the question before the Court as being whether the statutory provision at issue is“more than jurisdictional”).

Brandeis (Erie’s author) wrote that the apportionment of an interstate stream’swater presents a “question of ‘federal common law.’”248 Brandeis cited toearlier cases for the principle, but neither he nor the cited cases explained thesource of federal courts’ powers to create such federal common law249 – aquestion that, it is worth repeating, becomes essential in the wake of Erie’sembrace of positivism.

To be sure, in some contexts the Court has attempted to explain thesource of its powers to generate federal common law. Yet even here it is hardto escape the conclusion that a perceived need to act, rather than firm beliefin its inherent powers, drove the Court’s decision to articulate federal commonlaw, for the inherency justifications the Court has offered are extraordinarilyweak. First consider the federal common law of admiralty and interstateconflicts. The Court has said that the source of federal courts’ authority togenerate admiralty law is the Constitution’s “grant of general admiraltyjurisdiction to the federal courts.”250 As many have argued, however, thisjustification seems inconsistent with Erie’s holding that the Constitution’sgrant of diversity jurisdiction does not empower federal courts to creategeneral common law in diversity cases. After all, “there is no obviouslyrelevant difference in the texts of the diversity and admiralty jurisdictionalgrants.”251 If the diversity grant gives courts adjudicatory jurisdiction but notthe power to fashion substantive common law rules, why should the admiraltygrant operate differently?

Consider, as well, the Court’s holding in Textile Workers Union v. LincolnMills252 that federal courts’ powers to create a body of federal law to enforcecollective bargaining agreements came from the Labor Management RelationsAct’s provision that federal courts have jurisdiction over “[s]uits for violationof contracts between an employer and a labor organization . . . in an industryaffecting commerce.”253 Fairly read, this statutory provision is a jurisdictionalgrant – which the Court in fact acknowledged.254 Reliance on a jurisdictionalgrant as the source of a court’s power to generate federal common law thusis subject to the same sort of post-Erie critique leveled above in respect of theCourt’s admiralty jurisprudence: Erie made clear the distinction between


255See also supra note 249 (noting similar critique that can be leveled at various efforts that have beenmade to explain federal courts’ powers to create federal common law to resolve interstate controversies).

256Id.

257Merrill, supra note 205, at 40 & nn. 180-81.

258Tellingly, the Ames Court did not distinguish Marbury on the basis of the Constitution’s specificationthat “[i]n all other cases, the supreme court shall have appellate jurisdiction.” It quite plausibly could havebeen argued on the basis of this language that the Supreme Court could not have original jurisdiction overmatters that the Constitution granted it appellate jurisdiction. Rather, the Ames Court distinguishedMarbury on the basis of longstanding practice and practical considerations, as discussed above.

259U.S. CONST. ART. III, §2, CL. 2 (emphasis provided).

jurisdictional and substantive law-making grants, and why should the LMRA’sjurisdictional grant be the source of common law powers if the diversity grantis not?255 Lincoln Mills also relied on what Justice Douglas’ opinion for theCourt termed “a few shafts of light” in the legislative history to buttress itsconclusion,256 but “[t]he Court’s handling of the legislative history was severelycriticized by the dissent and, subsequently, by commentators.”257

B. Reasons for Concurrence. The analysis of the case law providedabove in subsection one demonstrates that the judicial decisions upholdingconcurrence all have stressed, and likely have been primarily driven by,situation-specific pragmatic considerations. Frequently, though not always,the Court also was able to point either to historical precedents or to the factthat the practice of concurrence had become widely accepted or well-entrenched.

The courts’ explanations, however, typically do not venture beyondrelatively undeveloped assertions that concurrence is practical or efficient. Inresponse to this, this subsection cashes out the types of benefits thatconcurrence brings. Consulting the case law’s explanations, but not confininganalysis to the justifications provided in the case law, seems particularlyappropriate to the task of ascertaining what drives concurrence insofar asconcurrence typically originates extra-judicially.

1. What The Courts Have Said a. Pragmatics and Past Practice. The Ames Court –

which, it should be recalled, reversed course from Marbury and upheldCongress’ allocation of original jurisdiction of cases involving States andambassadors to inferior federal courts – premised its holding on two bases:longstanding practice and considerations of practicality.258 Ames reasoned onthe basis of an analogous practice that had arisen in relation to federal courts’adjudicatory jurisdiction in respect of ambassadors. The same section of theConstitution that specified that the Supreme Court shall have originaljurisdiction over suits involving States provides that “the supreme Court shallhave original Jurisdiction . . . [i]n all Cases affecting Ambassadors . . .”259

Since the early days of our Republic, however, this language had not beenunderstood to mean that only the Supreme Court could have originaljurisdiction in cases affecting Ambassadors. The 1789 Judiciary Act providedthat the Supreme Court “shall have exclusively all such jurisdiction of suits or


260Ames, 111 U.S. at 463-64 (quoting the 1789 Judiciary Act, with emphasis provided by the author).

261Id. at 464. The Ames Court also observed that this construction was provided by “the first congress,in which were many who had been leading and influential members of the convention, and who werefamiliar with the discussions that preceded the adoption of the constitution by the states, and with theobjections urged against it . . .” Id. at 464. This raises an obvious question: shouldn’t these sameconsiderations have led the Court to decide Marbury differently?

262Id.

263Id. at 464.

264The Ames Court also reviewed several circuit court opinions that upheld against constitutionalchallenges the exercise by inferior federal courts of original jurisdiction in lawsuits involving foreignconsuls. Interestingly, the Ames Court also noted that one of the opinions was contemporaneous withthe decision of Chisholm v. Georgia, which famously caused immediate controversy and led to the quickadoption of the Eleventh Amendment. The Ames Court said that “[i]t is a fact of some significance, inthis connection, that although the decision in Chisholm’s Case attracted immediate attention, and causedgreat irritation in some of the states,” that the decision in the contemporaneous decision, “which in effectheld that the original jurisdiction of the supreme court was not necessarily exclusive, seems to haveprovoked no special comment.” See id. at 465-69.

265See Monaghan, supra note 167, at 868 (arguing that “[t]he expanding national government and therapidly expanding national domain quickly rendered [exclusivity] untenable”); Bator, supra note ?, at 254(“The justification for the existence of territorial courts has always been essentially pragmatic”).

266370 U.S. 530, 547 (1962).

267Id. at 544.

proceedings against ambassadors” but “original, but not exclusive, jurisdiction ofall suits brought by ambassadors . . .”260 The Court specifically noted that thislegislation reflected a “construction” of the Constitution by Congress,261 andprovided a highly practical (though hypothesized) rationale for Congress’“understand[ing] that the original jurisdiction vested in the supreme court was[not] necessarily exclusive”262:

keep[ing] open the highest court of the nation for thedetermination, in the first instance, of suits involving . . . a diplomator commercial representative of a foreign government . . . was dueto the rank and dignity of those for whom the [constitutional]provision was made; but to . . . deprive an ambassador, publicminister of consul of the privilege of suing in any court he chosehaving jurisdiction of the parties and the subject matter of hisaction, would be, in many cases, to convert what was intended as afavor into a burden.263

The Ames Court also was impressed by the fact that this longstanding practicewas popularly accepted.264

The Supreme Court itself, and commentators as well,265 likewise haveacknowledged that considerations of practicality drove the Supreme Court’sjurisprudence upholding concurrent power as between Article I tribunals andArticle III courts. Justice Harlan’s decision for the Court in the Glidden Co. v.Zdanok266 decision is exemplary. Justice Harlan traced non-Article III federalcourts back to Chief Justice Marshall’s opinion in the above-discussed Cantercase, which upheld a territorial court’s power to hear a case that would havebeen justiciable under a federal district court admiralty jurisdiction.267 Iexplained above how Justice Harlan’s opinion transformed the Chief Justice’s


268See supra text and notes at note 188.

269Glidden, 370 U.S. at 545 (emphasis supplied).

270Id. at 546-47.

27159 U.S. (18 How.) 272 (1856). The facts of this case are laid out in considerable detail supra at p. 37.

272Murray’s Lessee, 59 U.S. at 282.

rationale.268 But why did Justice Harlan think that Canter’s holding was correct?Harlan tells us: “The reasons for [Canter’s holding] are not difficult toappreciate so long as the character of the early territories and some of the practical problemsarising from their administration are kept in mind.”269 There was “no stategovernment to assume the burden of local regulation,” with the result that“courts had to be established and staffed with sufficient judges to handle thegeneral jurisdiction that elsewhere would have been exercised in large part bythe courts of a State.” It was imperative that these territorial courts not bestaffed by life-tenured Article III judges because there would have been noneed for them when the territories entered statehood.

This consideration, as well as other “problems not foreseen by theFramers of Article III,” Justice Harlan says, explained Canter: “Against thishistorical background, it is hardly surprising that Chief Justice Marshalldecided as he did. It would have been doctrinaire in the extreme” to rule otherwise.Instead, continued Harlan, Chief Justice Marshall was “conscious as ever ofhis responsibility to see the Constitution work” and accordingly “recognizeda greater flexibility in Congress to deal with problems arising outside thenormal context of a federal system.”270 Harlan then generalized, explainingthat “[t]he same confluence of practical considerations that dictated the resultin Canter has governed the decision in later cases sanctioning the creation ofother courts with judges of limited tenure” and that otherwise do not conformto the requirements of Article III.

The Court relied on considerations of historical practice andpracticality in its other decisions upholding non-Article III tribunals as well.In the landmark case of Murray’s Lessee v. Hoboken Land & Improvement Co.,271

for instance, the Court upheld the non-Article III procedure for collectingfederal taxes on the historical grounds that it did “not differ in principle fromthose employed in England from remote antiquity – and in many of the States,so far as we know without objection . . .” The Court then explained thepragmatic basis for this practice:

[P]robably there are few governments which do or can permit theirclaims for public taxes, either on the citizen or the officer employedfor their collection or disbursement, to become subjects of judicialcontroversy, according to the course of the law of the land.Imperative necessity has forced a distinction between such claims andall others . . .272

The nation’s courts-martial similarly were justified on the basis ofhistorical practice and practicality. Emphasizing the former, the early decision


27361 U.S. 65, 79 (1857).

274317 U.S. 1 (1942).

275126 S.Ct. 2749 (2006).

276Mistretta, 488 U.S. at 372; see also American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)(observing that “[t]he judicial approval accorded these ‘broad’ standards for administrative action is areflection of the necessities of modern legislation dealing with complex economic and social problems.”).

277Merrill, supra note 54, 198, at 2151-59, 2164-65; Posner & Vermeule, supra note 227, at 1743-45.


279See Sward, supra note 103, at 593. The earliest of these cases had been decided in 1853. See id.

280Id. at 598.

of Dynes v. Hoover273 concluded that “Congress has the power to provide for thetrial and punishment of military and naval offences in the manner then andnow practiced by civilized nations . . .” Emphasizing considerations ofpracticality, Ex Parte Quirin274 rejected the view that offenses against the lawsof war are subject to the requirements of the Fifth and Sixth Amendments,holding instead that such offenses can be tried in military tribunals, “which arenot courts in the sense of the Judiciary Article, and which in the natural courseof events are usually called upon to function under conditions precludingresort to such procedures.” Consistent with Ex Parte Quirin, the recentlandmark decision of Hamdan v. Rumsfeld275 candidly acknowledged that “[t]hemilitary commission, a tribunal neither mentioned in the Constitution norcreated by statute, was born of military necessity.”

Sometimes pragmatic considerations alone, absent historical pedigree,have proven to be sufficient justification for the Court. Consider in thisregard its forgiving non-delegation doctrine. As the Court has said in itsmore candid moments, “[o]ur jurisprudence has been driven by a practicalunderstanding that in our increasingly complex society . . . Congress simplycannot do its job absent an ability to delegate power.”276 This justification hasbeen elaborated and defended by multiple scholars.277 Pragmatics withoutpedigree also have sufficed in the Court’s Seventh Amendment jurisprudence,which is explored immediately below.

b. Efficiency. The judicial decisions sanctioningconcurrent judicial and jury fact-finding power were driven primarily byanother pragmatic consideration: efficiency and resource-preservation. TheMunson decision, which rejected the rule under which questions weresubmitted to the jury as long as there was “any evidence” rule, justified its newapproach by citing to “recent decisions of high authority” that “haveestablished a more reasonable rule . . .”278 The “high authority” that the SupremeCourt cited all were English cases that post-dated 1791, the year that theSeventh Amendment was adopted, and hence were not legally bindingauthority.279 Moreover, a careful review of the cases suggests that none ofthem went so far as to support the Court’s rule that judges can “take casesaway from the jury when there are disputes of pure questions of fact . . .”280

The conclusion is inescapable that what ultimately led the Supreme Court to



282See also Chamberlain, 288 U.S. at 343.

283Galloway, 319 U.S. at 389.

284Id. at 392.

285Id. at 393.

286See supra note 129.

287Redman, 295 U.S. at 656.

288Id. at 661.

adopt its new rule in Munson was its belief that the new rule was – as the Courtitself said – “more reasonable” than the old one: Why let a case go to the jury,even if there were some evidence in support of the plaintiff’s position, if a jurycould not “properly proceed to find a verdict” for the non-moving party?281

Doing so would only waste the valuable time of the court, jury, and parties.282

The Galloway decision, which determined that directed verdicts ongrounds of insufficiency of evidence did not violate the Seventh Amendment,likewise grounded its holding on considerations of practice and practicality.The “short answer” as to why “the Amendment [does not] deprive[] thefederal courts of power to direct a verdict for insufficiency of evidence,”explained the Court, is that any contention to the contrary “has beenforeclosed by repeated decisions made here consistently for nearly a century”with the result that any “objection therefore comes too late.”283 But theGalloway Court did not end its analysis there, as it also aimed to establish that“the consequences flowing from” the proposition that a judge’s only responseto insufficient evidence was to order a new trial “are sufficient to refute it.”284

The conclusion that the Seventh Amendment demanded a new trial after theplaintiff had failed to provide sufficient evidence in the first, said the Court,would lead to “endless repetition of litigation and unlimited chance, byeducation gained at the opposing party’s expense, for perfecting a case at othertrials.”285

Unlike Monson and Galloway, the Redman Court was unable to justify itsnew rule on grounds of past practice. This is becauseonly twenty years before,in Slocum, the Court had rejected the proposition that a court could disregarda jury’s determination and instead pass on the facts and substitute its ownjudgment.286 Indeed, the Second Circuit decision that was appealed to theSupreme Court in Redman had relied on Slocum for the proposition that a newtrial was the only remedy for a judge’s determination that a jury’s verdict hadbeen based on insufficient evidence,287 and the Supreme Court in the Redmandecision itself acknowledged that “some parts of the [Slocum] opinion givecolor to the interpretation put on it by the Court of Appeals.”288 This is anunderstatement: as reproduced above, Slocum had cited to many earlier decidedSupreme Court cases that had flatly asserted that only juries could find facts.

As a formal matter, Redman’s holding turned on a highly technicaldistinction. Unlike Slocum, the defendant in Redman had moved for a directedverdict on the grounds of insufficient evidence after evidence had been


289Id. at 659-60.

290See id. at 659 (“Whether the evidence was sufficient or otherwise was a question of law to be resolvedby the court.”).

291Id. at 657.

292See Thomas, supra note 98, at 156-57 (“[t]he court decided only a legal issue, which, under the commonlaw special case, did not involve a question of the sufficiency of the evidence.”). The pre-1791 Britishcases cited by Redman were not to the contrary, as they concerned reservations of legal questions that didnot turn on disputed facts such as the interpretation of statutes, the interpretation of a written will, andthe determination of whether damages could be recovered against a person who induces another to breachher contract. See Sward, supra note 103, at 616-24.

293That case was Jewell v. Parr, 13 C.B. 909, 138 Eng. Rep. 1460 (1853). Professor Sward argues thatJewell does not provide an adequate foundation for Redman because “the decision was necessary in orderto preserve a rule of law concerning who had primary responsibility for paying a bill,” id. at 595, andaccordingly was “more legal than factual.” Sward, supra note 103, at 595, 621. This distinction isunconvincing, for the same reasoning readily could carry over to Redman: the judge’s determination thatthe evidence propounded by insured was insufficient was “more legal than factual” insofar as it preserveda “rule of law” that insurance companies will not be deemed contractually liable unless insureds comeforward with more than the evidence than was propounded in Redman.

294Redman, 295 U.S. at 660.

adduced at trial but before verdict, and the trial court had reserved its decisionon the defendant’s motion. The Redman Court then pointed to the commonlaw procedure known as the “special case,” under which courts could submitthe case to the jury subject to reserved questions of law and, following verdict,award verdict to a different party than the jury depending upon how theirresolved the reserved question of law.289

So far Redman had done nothing out of the ordinary. What madeRedman revolutionary was its conclusion that sufficiency of the evidence wasamong the legal questions that could be reserved pending the jury verdict290

notwithstanding its acknowledgment that “issues of law are to be resolved bythe court and issue of fact are to be determined by the jury . . .” 291 As of 1791,the “special case” did not permit reservations concerning sufficiency of theevidence.292 The one British case Redman cited that did support the conclusionthat reservations could be made as regards sufficiency of evidence was notdecided until 1853 – i.e., until after 1791 – and hence was not formallyrelevant.293 Accordingly, the legal materials that were before the Redman Courtalone cannot explain its decision. In light of this, the efficiency-mindedpractical reasons the Court adduced for its ruling most likely are what fueledits decision: reserving questions “gave better opportunity for consideredrulings, made new trials less frequent, and commanded such general approvalthat parties assented to its application as a matter of course”294 and, the RedmanCourt suggested, these considerations carried over to questions as to whetherthe evidence was sufficient.

2. Systematizing Concurrence’s Benefits. As shown above,most of the Supreme Court’s justifications for concurrence amount tocontext-specific observations that concurrence carried pragmatic benefits.This section aims to formalize and systematize these benefits. In so doing itbuilds upon, but does not limit itself to, the justifications that the Court has


295Id. at 701.


2972 U.S. (2 Dall.) 409 (1792).

298Id. at 702-3.

299Id. at 702 (emphasis supplied).

provided. a. Unforeseen Circumstances. Non-Article III courts.

Administrative agencies. New institution delegations.b. Efficiency. As shown above, the Court explicitly

pointed to efficiency considerations in its Seventh Amendment jurisprudence.

c. Works-Around. Concurrence has been turned toas a mechanism for working-around various obstacles.

1. Practical Barriers. Pragmatic barriers(agencies, treaty-substitutes, article V amendment)

2. Inaction By Primarily Tasked Institution.(DCC, FCL)

3. Constitutional Barriers. Probably mostcontroversial of all, concurrence occasionally has been turned to avoidconstitutional limitations that hindered the most obvious institution fromundertaking a particular task. Consider in this regard Professor Pfander’sdiscussion of the Article I tribunal known as the Court of Claims. Under earlyAmerican practice, a private party who had a “public claim” againstgovernment (such as contractors and other public creditors) would submitpetitions for payment directly to the legislature. “Shortly after the Revolution,states began to experiment with the judicial determination of public claims.”295

Congress wished to meld these two practices together by having courts takethe first crack at public claims but retaining ultimate control in deciding whatpublic claims to ultimately authorize. The Invalid Pensions Act of 1792required article III federal courts to “hear the pension claims of veterans, toestimate the degree of their disability, and to propose the proper amount ofcompensation due them,” and then provided that such judicial determinationswould be reviewed by the Secretary of War and then Congress.296

The validity of this mechanism for initial judicial review followed byreview by the executive and legislative branches, however, was determined tobe unconstitutional in Hayburn’s Case, which held that Article III requires thatthe judiciary’s final decisions be final and accordingly could not be subject toexecutive or legislative review.297 Hayburn’s Case’s finality requirement ledCongress to create the non-article III Court of Claims in 1855. “In creatingthe Court of Claims, Congress was said to have created an Article I tribunalsubject to legislative oversight and free from the constraints of Article III.”298

In short, as Pfander nicely puts it, Hayburn’s Case “purchased judicial independenceat the price of forcing Congress to turn to other institutions to perform the function ofpreliminary adjudication.”299 In fact, Congress created several other non-article III


300See, e.g., Pfander, supra note 20, at 706-12 (arguing that Congress originally created non-article IIIterritorial courts because it believed that inhabitants of territories “lacked federal rights to enforce”) andthat territorial courts were local rather than national courts).

301Id. at 702.

302Indeed, Congress didn’t even attempt to avoid the locution of “court” when creating the Court ofClaims.

303See, e.g., Madison’s Second Helvidium letter.

304Much of what follows in this Part is drawn from Mark D. Rosen, Revisiting Youngstown: Against the Viewthat Justice Jackson’s Concurrence Resolves the Relation Between Congress and the Commander-in-Chief, 54 UCLA L.REV. 1703, 1717-31 (2007).

adjudicatory tribunals on the view that the Constitution flatly forbade it fromassigning particular adjudicatory tasks to Article III courts.300

Such a use of concurrence presents difficult legitimacy challenges: Isthe Court of Claims a brilliant work-around, or a troublesome (evenunconstitutional) end-run around, article III’s finality requirement? WhereasPfander appears to throw his lot in with the first approach in characterizingHayburn’s Case as having “forc[ed] Congress to turn to other institutions toperform the function of preliminary adjudication,”301 an alternative conclusionwould be that the Court of Claims is illegitimate: Congress cannot circumventArticle III’s finality requirement by creating adjudicative bodies that look andsmell like federal courts but are simply called something else.302

5. Synergies. Whole greater than sum of its parts.Complementing differing institution’ characteristics (Prospective versuspresentist, i.e. in Midwest Oil; access to experts (agencies); superiority of case-by-case decisionmaking, at least to generate initial rules (admiralty)

6. Addressing Emergencies. (Block v. Hirsh and non-juryagencies). Danger of generalizing from the exception.

IV. NOT ALL OR NOTHING

[to be written]Many powers that everybody accepts are exclusively held by single

institution: (1) only Congress has appropriation power, (2) impeachmentpowers; (3) only Pres has recognition power

Even where concurrence exists, often there are limits. Eg, Schor andlimits on article I courts’ powers. Youngstown limits presidential “legislative”powers to independent powers + delegation.

Matters currently up for grabs: declare war;

V. METHODS FOR ADDRESSING CONFLICTSThough the possibility of conflict is a constant anxiety caused by

concurrence, and sometimes is viewed as a definitive reason to embraceexclusivity,303 American law not infrequently confronts, and deals with,conflicts among two or more institutions with overlapping powers. A reviewshows that American law has developed six different methods for addressinginter-institutional conflicts.304 Relatedly, a study of the various methods for


addressing conflict shows that context-specific institutional considerations,rather than trans-substantive principles, typically explain the selection of themethod. That we already have at our disposal multiple mechanisms fordealing with conflict suggests that the prospect of conflict is not on its own asufficient reason to rule out concurrence. At most, the prospect of conflictconstitutes a cost of concurrence that appropriately is weighed against thebenefits that concurrence promise in a particular context.

A. Institution-Based Conflict-Resolution Principles. Two types:(a) Categorical Institution-Based Conflict Rule: one institution’s acts

categorically trumps the other (e.g., supremacy clause; Congress trumpsdormant commerce clause and federal common law rules; judiciary’sconstitutional interpretations trump constitutional interpretations of otherinstitutions under Marbury). Call this a Type 1A conflict-resolution rule

(b) Presumptive Institution-Based Conflict Rule: one institutionpresumptively, but non-categorically, trumps (e.g., juries find facts, subject tonarrow judicial overrides). Call this a Type 1B conflict-resolution rule.

B. Time-Based Conflict-Resolution Principles. Once again, two types:(a) first-in-time (res judicata and collateral estoppel to resolve conflicts

among courts with concurrent authority – the first court to reach finaljudgment trumps). Call this a Type 2A conflict-resolution rule.

(b) last-in-time (treaties, Congressional Agreements, and SoleExecutive Agreements, where conflicts among these are resolved on basis ofa last-in-time rule; Rest (2d) of Judgments §15 rule according last-in-timetrump to narrow category of res judicata issues: “When in two actionsinconsistent final judgments are rendered, it is the later, not the earlier,judgment that is accorded conclusive effect in a third action under the rulesof res judicata”). Call this a Type 2B conflict-resolution rule.

Frequently used in relation to institutions of equivalent hierarchicalrank where there is no a priori reason to give trumping advantage to oneinstitution over another.

C. Multi-factor Conflict-Resolution Principles. Eg, the multi-factorapproach used in state conflict of laws doctrine. Used in circumstance ofwhere institutions have equivalent hierarchical rank and a timing rule eitherwouldn’t work or would exclude too many considerations that are adjudgedto be normatively relevant. Down-side: as number of considerations grows,can become ad-hoc and unpredictable. Call this a Type 3 conflict-resolutionrule.

D. No-Sorting Principles. A final possibility is that the law couldrefuse to adopt a conflict-sorting rule, with the result that two (or more)institutions are permitted to simultaneously act, even if they act inconsistently.There are several possible outcomes. First, the regulated entities may besubject to multiple rules simultaneously, some of which may conflict, and are


305As I have explained elsewhere, this is true of state criminal law generally, and also is reflected in theDouble Jeopardy Clause’s “dual sovereignty” doctrine. See Rosen, Youngstown Revisited, supra note ?, atxx.

306(eg, UCCJA, cf. From checks and balances context of reconciling Senate and House bills).

307Second Helvidius Letter, reprinted in Debates, supra note ?, at 66.

expected to conform their behavior nonetheless.305 Other times, the differentinstitutions with overlapping authority may formally or informally negotiateamong themselves to coordinate their actions.306 Such coordination typicallyis undertaken by the political branches of government, not the courts. Callthis a Type 4 conflict-resolution rule.

Alexander Hamilton proposed a Type 4 conflict-resolution rule in thecourse of the Pacificus-Helvidius Debates. Madison, it should be recalled,argued that if the President had the power to interpret treaties for onepurpose, then it necessarily followed that the President also had to have thepower to interpret treaties for purposes of determining whether war should bedeclared.307 Since the Constitution grants Congress the power to declare war,Madison concluded the President could neither declare war nor, as aconsequence, interpret treaties.

Hamilton disagreed, concluding that the President could interprettreaties pursuant to the exercise of his general executive powers while theCongress could interpret treaties in the exercise of its power to declare wars.I showed earlier, Madison recoiled at this, largely because it opened the doorto conflicting treaty interpretations by the President and Congress. Hamilton’sresponse concerning possible conflicts appears when he discusses ahypothetical that pitted the President’s recognition power against Congress’declare war powers. [to finish]

Possible justifications: Competition, spur to action, belief thatcoordination likely to yield best outcome because pools institutional resourcesof both institutions, no viable alternative conflict-resolution rule.

VI. THE BIG PICTURE: META-NARRATIVES AND CONSTITUTIONALIMPLICATIONS

A. Meta-Narratives.

B. Constitutional Implications. Eg, the multi-factorOriginalism: treaty wrong (Tribe, Ackerman & Golove), but plausible same-effect at least some places (Pacificus)

Textualists: a la Merrill, plausible delegations; same-effect perfectly plausible

change typically occurs at initiative of extra-judicial institutions. Broadarray of pragmatic considerations has given rise to concurrence in past.

[to write]

from exclusivity to concurrence mark d. rosen

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