Catholic University Law Review
The distinction among the several types of federal courts in the United States has gone almost unremarked in the academic literature. Instead, attention focuses on Article III “constitutional” courts with occasional discussion of how they differ from what are referred to as “non-constitutional” or “legislative” courts. At best, these labels are misleading: all federal courts have a constitutional locus. Most (but not all) are brought into being via legislation. The binary approach ignores the full range of adjudicatory bodies, which find root in different constitutional provisions: Article III, Section 1, Article I, Section 8; Article IV, Section 3; Article II, Section 2/Article I, Section 8, Clause 3; and Article II, Section 1. These distinctions matter for defining jurisdiction and understanding the scope of the authorities—and constitutional protections—that apply. The failure of scholars to take into account the panoply contributes to inaccurate analyses and cabins debates. This Article takes a significant step forward, providing a conceptual framework for each type of court and delineating, based on their legal and historical underpinning, which entities constitute each category. It details the courts’ constitutive elements and their jurisdiction as supported by doctrine, statutory law, and scholarly literature, providing the first, comprehensive taxonomy of federal courts in the United States.
Laura K. Donohue & Jeremy McCabe,
Federal Courts: Article I, II, III, and IV Adjudication,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol71/iss3/9