An elegant solution, however, has hidden itself in plain sight within the Appointments Clause: permit the D.C. Circuit to appoint and discipline ALJs upon the request of agencies and interested parties. An interbranch appointment (i.e., one branch’s appointment of officers for another branch) resolves the three concerns identified here without offending the separation of powers. In particular, this mode of appointment would provide ALJs additional independence without offending the President’s removal power or undermining the D.C. Circuit’s judicial function. In proposing this solution, I offer a clarified analytical framework for Congress’s largely unexplored interbranch-appointment power, an underutilized tool for resolving difficult separation-of-powers problems.

To that end, the Article first identifies two considerations that underlie any theoretical account of the evidentiary proof process and its components: factual accuracy and allocating the risk of erroneous decisions. Next, it articulates and defends general criteria by which to evaluate theoretical accounts in evidence scholarship in light of these considerations. Finally, it applies the general criteria to evaluate two theoretical accounts—a probabilistic conception and an explanatory conception—and concludes that the probabilistic conception fails and the explanatory conception succeeds in light of the theoretical criteria. Along with clarifying evidence theory, the Article also clarifies the relationship between theoretical and empirical scholarship in this area.