shortest federal court docket -- case or controversy question

Sisk, Gregory C. GCSISK at
Mon Sep 11 16:40:15 PDT 2006

To make the response more concrete, the United States Court of Federal
Claims is an Article I court whose judges not only have their chambers
inside a federal courthouse but share courthouse with the Article III judges
of the United States Court of Appeals for the Federal Circuit.  Moreover,
because the judges of the Court of Federal Claims travel throughout the
country for the convenience of the parties, they regularly hold hearings in
other federal courthouses throughout the nation.

In most respects, the judges of the Court of Federal Claims remains Article
I judges only in form, as while they officially are appointed for fifteen
year terms, by statute even if not reappointed they remain in office as
"senior judges" continuing to exercise judicial responsibilities.  With the
exception of congressional reference matters, which are a very small part of
the docket, the subject matter of the Court of Federal Claims could be
adjudicated by an Article III court.  In my view, there is every reason to
grant this court full standing as an Article III court.  But for now it is
an Article I court -- and, again, it has its own shared federal courthouse.

[Shameless self-promotion:  The Court of Federal Claims, its history, its
jurisdiction, etc., are discussed at some length in my treatise on
"Litigation with the Federal Government" (ALI-ABA, 4th ed., 2006).]

Gregory Sisk
Professor of Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
gcsisk at

-----Original Message-----
From: Earl Maltz [mailto:emaltz at] 
Sent: Monday, September 11, 2006 6:22 PM
To: Janet Alexander; Janet Alexander; Mark Tushnet; 'J. Noble'; 'Fred
Shapiro'; 'Samuel Bagenstos'
Cc: conlawprof at
Subject: RE: shortest federal court docket -- case or controversy question

Again, I am entirely willing to believe that the functions of Article I 
judges are limited by statute.  But a constitutional principle that depends 
on the place where an official sits strikes me as rather odd.  Perhaps you 
could enlighten me about which case you believe is dispositive.

At 02:26 PM 9/11/2006 -0700, Janet Alexander wrote:
>At 02:50 PM 9/11/2006 -0400, Earl Maltz wrote:
>>. . .The constitutional issue is different.  Since these judges are 
>>creatures of Article I, it seems to me that the normal standards 
>>applicable to all Article I issues should be applied.  If that is so, 
>>surely Congress has the authority to create a single office with a 
>>mixture of functions.
>Sure, if you ignore the statutory structure and the constitutional theory 
>under which they operate, as well as the case law from the Rehnquist and 
>Burger Courts about their place in the constitutional structure.
>Congress does have the authority to "create a single office with a mixture 
>of functions."  But it has to be an administrative agency, dealing with 
>federal programs or matters closely related thereto.  It can't be located 
>in the federal courthouse.
>         Janet Alexander
>Janet Cooper Alexander
>Frederick I. Richman Professor of Law
>Stanford Law School
>Stanford CA 94301-8610

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