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For nearly a century, one of the most contentious issues in the Administrative State has been agency “adjudication” — that is, the power of agencies to adjudicate disputes among private parties, or disputes between private parties and the government. But what if a century’s debate has actually caused us to forget what the issues really are?
In the new issue of the Harvard Law Review, Professor William Baude brings us back to first principles on the question of “Adjudication Outside Article III.” Describing the task as “a sympathetic recreation of historical practice,” Professor Baude explains what the Constitution’s provision for “the Judicial Power of the United States” means for territorial courts, for quasi-“court” tribunals like the Bankruptcy Court, and ultimately for the agencies’ own “adjudications.”More