Article III of the Constitution mandates that judges exercising the federal judicial power receive life tenure and that their pay not be diminished. Nonetheless, certain forms of adjudication have always taken place outside of Article III—in state courts, military tribunals, territorial courts, and administrative tribunals. Administrative law judges, employed by various federal administrative agencies, decide thousands of cases each year. A vast majority of the cases they decide deal with public rights, which generally include claims involving federal statutory rights or cases in which the federal government is a party. With litigant consent, however, the Supreme Court has upheld administrative adjudication of certain claims involving private rights. In the bankruptcy context, the Court has further determined that litigant consent may be implied.
This Note considers implied consent in the context of administrative adjudication. It examines various objections to it and argues that allowing parties to implicitly consent to administrative adjudication of claims involving private rights does not violate Article III. This Note offers a solution for how the consent exception to Article III should operate in the context of administrative adjudication by considering what constitutes implied consent and the weight of litigant consent in the determination of whether a claim involving private rights is proper for administrative adjudication.