Judicial Independence, Autonomy, and the Bankruptcy Courts

64 Pages Posted: 15 Apr 2010

See all articles by Troy A. McKenzie

Troy A. McKenzie

New York University School of Law

Date Written: April 13, 2010


Bankruptcy judges enjoy neither of the twin structural protections provided by Article III of the Constitution: life tenure and compensation that cannot be diminished. Yet, they exercise broad adjudicatory powers. This Article questions whether the conventional justifications for non-Article III tribunals should apply to the bankruptcy courts and offers alternative rationales for the current system of bankruptcy courts that are absent from the literature.

The first conventional justification for non-Article III tribunals - a balancing test crafted by the Supreme Court - holds that they may handle specialized matters whose substance is narrow and technical, with limited prospects for generating the political heat from which Article III is supposed to insulate the federal judiciary. But bankruptcy adjudication is not narrow and technical. Bankruptcy courts routinely decide matters covering a range of subjects as broad as the civil docket of the Article III district courts, often with the potential to spark considerable political interest. Bankruptcy cases may involve a specialized process, but their substance is not specialized.

The second conventional justification assumes that appellate review by Article III courts will be sufficient to check the power of a non-Article III tribunal. Bankruptcy cases, however, generate relatively few appeals, and those cases that do make it out of the bankruptcy courts to Article III courts face a variety of constraints as vehicles to control bankruptcy judges. Bankruptcy judges remain largely autonomous from the Article III courts that supposedly superintend them.

In spite of the inadequacy of these standard justifications, this Article makes a tentative case for non-Article III adjudication in bankruptcy. First, the autonomy of bankruptcy judges comes in part from the appointment process to the bankruptcy bench and their lack of promotion to the Article III courts. That autonomy gives them, paradoxically, a layer of insulation from outside political pressure that is the core value of Article III. Second, the process for appointing bankruptcy judges has created a bench that remains oriented toward an audience - the bankruptcy bar - that holds in highest esteem professionalism, creativity, and non-ideological adjudication, which are also key values associated with Article III.

Suggested Citation

McKenzie, Troy A., Judicial Independence, Autonomy, and the Bankruptcy Courts (April 13, 2010). Stanford Law Review, Vol. 62, No. 3, 2010, NYU School of Law, Public Law Research Paper No. 10-24, Available at SSRN: https://ssrn.com/abstract=1589028

Troy A. McKenzie (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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