In earlier work, I discussed historical understandings of the kinds of disputes that Congress can authorize nonjudicial actors to resolve and the kinds of disputes that can be resolved only by courts. The framework that I described revolved around two distinctions: (1) the difference between “public rights” (which I defined as legal interests that belong to the government or the people collectively) and legal interests that belong to a private person; and (2) within the category of private legal interests, the difference between mere privileges or expectancies and vested rights to life, liberty, or property. In my telling, nineteenth-century lawyers and judges thought that Congress could authorize executive-branch actors to administer and dispose of “public rights” and mere privileges or expectancies without judicial involvement, but that only courts could render judgments conclusively rejecting a private person’s claim to vested rights.
Recently, Professor Gregory Ablavsky has taken issue with my account. In Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277 (2022), he identified an alleged counterexample to the framework that I described: when foreign sovereigns ceded territory to the United States, inhabitants of the ceded territories who claimed “imperfect” titles based on incomplete grants from the previous sovereign were not thought to be entitled to judicial adjudication of their claims, even though the legal interests that they asserted were regarded as property. According to Professor Ablavsky, this history supports a broader understanding of “public rights” than I offered, and it potentially legitimates more nonjudicial adjudication than my framework would suggest.
This Article responds. It explains why imperfect titles to land in the ceded territories were not treated as judicially cognizable vested rights, and it defends my understanding of “public rights.”