Crowell v. Benson: A Case Study in the Shaky Foundations of Modern “Public Rights” Doctrine

Modern Supreme Court constitutional interpretation increasingly looks to history. Second Amendment jurisprudence post-Bruen and Rahimi looks to early American analogs for the permissibility of firearms restrictions. Our substantive due process test as articulated in Washington v. Glucksberg looks, in part, to whether a right is “deeply rooted in this Nation’s history and tradition.”

Similarly, the test for interpreting the Seventh Amendment has long taken its language of preservation of the right to a jury in civil lawsuits to refer to the common law—as distinct from other systems such as equity—as it was in 1789. The Supreme Court recently affirmed this approach in SEC v. Jarkesy.

But when it comes to “public rights,” a historical mistake persists.

Public rights have never been well defined nor exhaustively categorized. Loosely, the term refers to actions, usually between a person or business and the government, that result from a regulatory scheme. Under the “public rights” exception, the Supreme Court has allowed for these actions to be brought and their facts determined by tribunals within the same agencies that bring the actions rather than in court with a jury.

Public rights have no basis in the Constitution. As Chief Justice Roberts noted, writing for the majority in Jarkesy, the exception can only come from “background legal principles.” If that statement is true, and if the exception legitimately exists, history must provide the boundaries of that background.

The Jarkesy majority thus used a historical test. First, the Court followed the normal Seventh Amendment inquiry by focusing on the remedy—there, civil damages, a common law remedy. It determined that the Seventh Amendment would apply if an SEC action against an investor were brought in federal court. Then, to determine whether the action must be brought in federal court or pertained to a public right that could be brought in-house by the SEC, the Court followed a similar inquiry to look for the presence of a public right. In this second step, it looked to historical analogs of the SEC’s claim, determining that it was akin to fraud, which is native to the common law. The Court found no public right.

Although the Jarkesy majority found no public right and cautioned that the public rights exception should not swallow the rule, it stopped short of eliminating or even defining the exception. The majority distinguished a case called Atlas Roofing Co. v. Occupational Safety and Health Review Commission, claiming that the action there did not clearly stem from the common law. As a result, some of the reasoning from the Court’s landmark public rights cases that have allowed agency adjudication, including both Atlas Roofing and others, remains intact. Yet fundamentally, at least some of these cases misunderstand one of the cases on which they build—the 1932 case Crowell v. Benson.

Crowell decided a case concerning private rights, but it included some language about public rights and some features similar to later public rights cases. But here’s what is often overlooked: Crowell was an admiralty case. Its historical tradition was wholly different from that at work in later public rights cases.

Crowell involved a worker’s compensation statute. Because its jurisdiction was based on the “navigable waters” of the United States, it was heard on the admiralty docket at the Supreme Court. Its reasoning was based on maritime law, which in England used to be handled in special courts. Admiralty courts were built more on the civil law system from Rome than on the common law as it developed in England. (Technically, admiralty and maritime law were historically distinct, but they were merging in the United States by 1932.)

The reasoning in Crowell rested on that history. Chief Justice Charles Evans Hughes reasoned for the majority that, because Congress had specific authority to alter the maritime law, it could create rights there. In turn, Congress had more options for choosing procedure that would be consistent with the tradition of admiralty courts (subject to due process).

In this context, Crowell allowed for administrative factfinding, and it did so based on history. The Court referred to the “historic practice to call to the assistance of the courts, without the consent of the parties, masters, and commissioners or assessors, to pass upon certain classes of questions,” generally just as advisors to the court. But here is the key: it was, the Court explained, “historic practice” “[i]n cases of equity and admiralty” (emphasis added). In fact, the decision compares their advisory role in fact-finding to the role of juries in common-law cases.

Yet, instead of all that, Atlas Roofing cited Crowell for its dicta that drew from the original narrow public rights case, Murray’s Lessee. Atlas Roofing cited that dicta to support and illustrate public rights and their assignment to administrative agencies without provision for a judicial trial. It referred to the admiralty context only in a footnote and ignored the support for juries in the common-law context.

Later cases ascribe even more to Crowell. Thomas v. Union Carbide Agricultural Products Co. took it to stand for the “lesson . . . that practical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III.” Commodity Futures Trading Commission v. Schor further uses Crowell as a basis of comparison for agency models and cites it for the types of questions suited to an administrative agency as well as the “unquestioned validity” of a reparation scheme administered by the commission. Similarly, in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, Justice Thomas cites to Crowell for the general conceptions of public rights (although not defining them) and of agency authority. All ignored the consequences of the historical difference between admiralty and common law.

Three consequences follow from correctly understanding Crowell. First, Crowell supports the idea that there is not a vague catch-all of types of actions beyond Article III and the historic systems of courts. In the 1830 case Parsons v. Bedford (cited in Jarkesy), Justice Joseph Story wrote that “common law” as used in the Seventh Amendment embraced anything that implicated a common law right (so not something that fell within one of these other systems of equity or admiralty), stating that “the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction[.]” Crowell is consistent with this understanding: it does not suggest that there is some ambiguous fourth category for things that do not fit well in the other three, but rather distinguishes on the basis of the trichotomy’s history.

Second, Crowell supports a wide use of juries. Crowell did not address the tension between administrative factfinding and the Seventh Amendment because it could not. The Seventh Amendment only applies to suits “at common law,” not in admiralty. But Crowell also did not have to address this tension. In limiting the role of masters, commissioners, and assessors to equity and admiralty while referencing the role of the jury at common law, Crowell is consistent with the Seventh Amendment and supports its broad application.

Third, while litigators, academics, and courts may look for cases to support administrative factfinding as broadly historically supported and constitutionally acceptable, Crowell simply isn’t one of them.

The error that results from misapplying Crowell leads to results that are not new. In his Jarkesy concurrence, Justice Gorsuch pointed out that the grievances of the American revolution included that American claims were being diverted to vice admiralty courts. Colonists were actively being denied their common law rights through the rules for admiralty being used too broadly.

Our modern jurisprudence should not make the same error. Then, it was an intentional deprivation of the rights of citizens. Now, with our jurisprudence increasingly looking to history, we have a chance to revisit the deep traditions behind American law and the way those traditions have been channeled through cases like Crowell. It’s a chance to not make the same error of the eighteenth century again as a modern mistake.

August 8, 2025