Ari Goldstein, a 2025 graduate of the University of Pennsylvania Law School, has published The Lost World of Jurisdictional and Constitutional Facts in the Administrative Law Review:
According to the standard historical account, courts have deferred to agencies on questions
of fact since the early twentieth century. 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 strong evidence to suggest that
the APA was intended to incorporate this distinction between ordinary, jurisdictional, and
constitutional facts. This Article 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.
Dan Ernst
