Equity and the Article I Court: Is the Tax Court’s Exercise of Equitable Powers Constitutional?

Abstract

“Relieve the judges from the rigour of text law, and permit them, with pretorian discretion, to wander into it’s equity, and the whole legal system becomes incertain.”

“Tax law is not based on equity and arguments of equity have little force.”

To most lawyers, the “federal courts” are the courts created under Article III of the United States Constitution. However, the federal courts also include the United States Tax Court, the United States Court of Federal Claims, the bankruptcy courts, and the territorial courts – all “legislative courts” created by Congress under Article I of the Constitution. Several of these Article I courts have important jurisdiction and large dockets, and issue influential opinions with precedential value. Yet, scholars typically have not paid much attention to legislative courts other than the bankruptcy courts, which are courts adjunct to the Article III district courts. Since 1988, when Professor Richard Fallon of Harvard Law School published his important article, “Of Legislative Courts, Administrative Agencies, and Article III,” little has been published on the features and limitations of Article I courts.