Document Type
Article
Publication Date
2024
Publication Citation
99 Indiana Law Journal 675 (2024)
Abstract
Legislative courts doctrine has become terribly tangled. When an area of law is summarized as one in which the “precedents are horribly murky, doctrinal confusion abounds, and the constitutional text is by no means clear,” that area of law has become a Gordian Knot. Attempts to untangle it will prove futile. For over a century and a half, the Supreme Court has repeatedly tried to make sense of legislative courts, but to no avail. These attempts, ranging from pure formalism to functional balancing tests, have proven detrimental to individual litigants.
That is where due process comes in. Despite the fundamental constitutional principle of due process and its promise of a neutral adjudicator, the Supreme Court has failed to consider the legislative courts doctrine from this perspective. The Supreme Court has provided a robust body of jurisprudence under the Due Process Clause about unacceptable pressures and influences on adjudicators. But no one has thought to introduce the two. So rather than continue to try to untangle legislative courts doctrine, we need to use the sword of due process to cut the knot. This piece aims to begin that conversation.
Recommended Citation
Redish, Martin H. and Piatt, Austin
(2024)
"Cutting the Gordian Knot: Legislative Courts and Due Process,"
Indiana Law Journal: Vol. 99:
Iss.
3, Article 1.
Available at:
https://www.repository.law.indiana.edu/ilj/vol99/iss3/1