Ari Goldstein (University of Pennsylvania Carey Law School) has posted The Lost World of Jurisdictional and Constitutional Facts in Administrative Law on SSRN. Here is the abstract:
According to the standard account, courts over most of the last century have deferred to agencies on questions of fact while applying independent judgment on questions of law. But that account is incomplete. In the world before the APA, courts generally deferred to agencies only with respect to “ordinary” facts. With respect to two particularly important types of facts—jurisdictional facts (facts on which an agency’s jurisdiction over a dispute depended) and constitutional facts (facts on which an individual litigant’s constitutional rights depended)—courts applied independent judgment in a similar manner as they did to questions of law. There is even strong evidence to suggest that the APA was intended to incorporate the distinction between ordinary, jurisdictional, and constitutional facts. This Essay recovers the origins of the distinction and its status at the dawn of the APA; considers its merits; and traces its evolution and diminishment in the eight decades since then.
Recommended. A very fine student paper.