I have been reading several cases on "private rights" and "public rights" doctrine.  The public rights doctrine in reality is BS, which the author concluded basically in this area.  I just finished reading the 1983 Duke L.J. 197 (1983) law review in which the author does a long discussion of the public rights and one of the conclusions included is the Supreme Ct stating we have moved away from the true Article III courts for so long that it is to late to go back.  I have a major problem with that one as my constitutionally secured rights are not subject to tyranny, even it is has been 150 years getting to where we are today.

 

        I have included a part that I found very interesting in understanding the administrative agencies.  In reality, a legislative court and an administrative agency are one, but one can enforce and the other one can't .  the author is discussing the impact of Northern Pipeline Constr. Co. v. Marathon Pipeline Co., 102 S. Ct. 2858, 2881 (1982),

 

The primary functional distinction between the work of administrative agencies and that of legislative courts is that unlike courts, agencies*217 generally cannot issue automatically enforceable orders. Rather, agencies often, though not always, [FN130] must seek enforcement in an article III court. [FN131] Upon initial examination, one might conclude that the distinction is a significant one; the essential attribute of the exercise of judicial power might well be deemed the ability to issue and enforce orders. As a practical matter, however, elevating this distinction to a status of constitutional significance places form over substance. When an agency seeks enforcement of an order in federal court, the court is required by both statute [FN132] and precedent [FN133] to defer to the findings and conclusions of the agency. [FN134] Such deference is logical, in light of the accepted principle that one purpose of administrative agencies is to have decisions made by those with the necessary expertise in the regulated subject matter. [FN135] But one may question whether there is any difference, in terms of satisfying the article III provisions, between the requirement that the non-article III agency seek enforcement in an article III court where that agency's findings are subject to a minimal level of review, and the roughly comparable appellate review of the automatically enforceable orders of a bankruptcy or other legislative court. The only practical difference is that in the former situation, the inertia of the initial decision lies in favor of the party that loses before the agency: if no further legal action takes place following issuance of the agency's order, that losing party will not be required to comply. In the case of the legislative court, however, the burden will be on the losing party to seek further legal action if it wishes to avoid forced compliance. But considering that it would be an absurd waste of agency time, expense, and effort to conduct an adjudicatory proceeding absent a plan to automatically take the comparatively simple step of seeking judicial enforcement (absent voluntary compliance), the distinction appears considerably more theoretical than real. [FN136] In both situations, the non-article III body conducts the primary adjudication, makes the basic *218 legal and factual findings, and is subject to some level of review in an article III court.

 

 [FN131]. Orders of the National Labor Relations Board, for example, are not automatically enforceable. See NLRB v. Marsh Supermarkets, Inc., 327 F.2d 109, 112 (7th Cir.), cert. denied, 377 U.S. 944 (1963); 29 U.S.C. ß  160(e) (1976). ('The Board shall have power to petition any court [of appeals or district court] . . . for the enforcement of such order . . ..')

 [FN132]. E.g., 29 U.S.C. ß  160(e) (1976).

 [FN133]. E.g., NLRB v. Bradford Dyeing Ass'n, 310 U.S. 318, 342-43 (1940).

 [FN134]. See, e.g., Local 13, Detroit Newspaper Printing & Graphic Communications Union v. NLRB, 598 F.2d 267, 272 (D.C. Cir. 1979).

 [FN135]. See id.; cf. FCC v. RCA Communications, 346 U.S. 86 (1953).
 

 [FN136]. In a sense, voluntary compliance is analogous to a losing party's decision not to seek appellate review of a lower court's order.

Rather that attach this as I have been posting a lot, if anyone wants it - e-mail me privately.

 

Ralph