Richard H. Fallon, Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915 (1988).
Abstract: Although article III of the Constitution provides that the judicial power of the United States shall be vested in courts whose judges enjoy life tenure and protection from salary reduction, longstanding precedent and practice establish that Congress may create courts that lack these guarantees of judicial independence. In this Article, Professor Fallon criticizes the amorphous balancing test that the Supreme Court has recently employed to determine the constitutional permissibility of delegations of adjudicative power to non-article III federal tribunals. After identifying the competing practical and constitutional values, he argues that the best accommodation lies in an "appellate review" theory. Professor Fallon's theory broadly justifies congressional employment of non-article III tribunals to engage in initial adjudications, but holds that appellate review in a constitutional court is minimally necessary to protect article III values. To demonstrate that his suggested approach is workable as well as normatively attractive, Professor Fallon examines areas of the law in which appellate review has traditionally been regarded as unnecessary. He concludes that an appellate review theory requires few changes in current practice. Finally, the Article discusses the necessary scope of review by a constitutional court for article III's underlying values to be protected adequately.