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Who Can Properly Be Called a Judge?

Professor Gary Lawson defines the judicial power, according to the terms specified in the Constitution. However, there are a variety of people who look and act like judges - territorial judges, military judges, administrative agency judges. Professor Lawson proposes that there has never been an easy answer to the question “who can properly be called a judge?.” https://youtube.com/watch?v=tI57l6aWkFA


Article three of the Constitution, vests the judicial power in the federal courts. Other parts of the Constitution define certain attributes of those federal courts. The two most important are, they have tenure during good behavior, sometimes mistakenly called life-tenure it's tenure during good behavior, they can be impeached and removed for misbehavior. And they also have guarantees against diminishment in salary while in office. Congress doesn't like the way federal courts are deciding cases, can't cut their salaries just to punish them for it. So there are certain baked in features that federal courts have to have. So there are plenty of people who act like judges, look like judges, sometimes we even call them judges. Territorial judges, military judges, administrative law judges, but from a constitutional standpoint, they aren't judges. What are they allowed to do? What can't they do? This is one of long unsettled, questions in all of constitutional law. It was unsettled two- hundred and twenty-five years ago, it's even more unsettled today. There are two cases decided in the middle of the nineteen-eighties that make it very clear that agency officials can adjudicate even the kinds of claims, ordinary contract actions, that normally you would think would be the stuff of courts. "But!" says the Supreme Court, "They can't do too much of that. If they do too much of that, we've got a problem." We're still litigating the full contours of those limitations today, so it's not even settled fully today. So suffice it to say this is a question of some importance, to which as of this moment, we do not have a clear crisp answer and there is no prospect, I would say, no prospect at all that you're going to get an answer in the near future.

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