Document Type

Article

Publication Date

2021

Abstract

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, and most, but not all, federal courts are brought into being via legislation. The binary approach further ignores the full range of federal courts, which are rooted in different constitutional provisions: Art. III(1), Art. I(8); Art. IV(3); Art. II(2)/I(8)(3); and Art. II(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 full panoply of the federal judicial system has contributed to inaccurate analyses and cabined the debate. 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 adjudicatory bodies in the history of the United States fall within each category. It details the constitutive elements of the courts and their jurisdiction as supported by doctrine, statutory law, and scholarly literature, providing the first, comprehensive taxonomy of federal courts in the United States.

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