Footnotes (232)



Constitutional Gaps in Bankruptcy

S. Todd Brown

SUNY Buffalo Law School

August 31, 2011

American Bankruptcy Institute Law Review, 2012
Buffalo Legal Studies Research Paper No. 2012-020

Federal bankruptcy law incorporates a broad range of commercial and related matters that are otherwise left to the States under the Constitution, follows an efficiency-centered process model that may implicate due process, and relies upon a judicial structure that appears to be inconsistent with Article III. In spite of the crushing volume of bankruptcy cases and proceedings each year in which the resolution of one or more of these questions may be relevant, the Supreme Court has had few opportunities to tackle them directly. Indeed, after more than two centuries, the Court has provided precious few insights into the limits of the bankruptcy power and the degree to which the various mechanisms for administering and adjudicating bankruptcy cases and proceedings may be assigned to Article I courts. And, for more than a quarter century, the modern bankruptcy adjudication structure has been premised upon untested assumptions about the bankruptcy power and Article III that were rejected in, or may be subject to challenge following, the Court’s conclusions in Stern v. Marshall.

Using Marshall as a focal point of the discussion, this article explores both the structural gap between the design of the bankruptcy system and its constitutional limits and the causes of the temporal gap between the adoption of the current structure and the Court’s consideration of its constitutionality. Although these constitutional gaps have allowed the bankruptcy system to flourish during the last three decades, they have also increased its cost and complexity unnecessarily and, after Marshall, we should expect these effects to be far more pronounced. This article also outlines the need to correct these gaps as a precondition to developing an informed and constitutionally sound bankruptcy system that can realize the promise of the Bankruptcy Code.

Number of Pages in PDF File: 56

Keywords: Marshall, bankruptcy, constitutional law, appeals, private rights

Open PDF in Browser Download This Paper

Date posted: August 31, 2011 ; Last revised: September 12, 2013

Suggested Citation

Brown, S. Todd, Constitutional Gaps in Bankruptcy (August 31, 2011). American Bankruptcy Institute Law Review, 2012; Buffalo Legal Studies Research Paper No. 2012-020. Available at SSRN: https://ssrn.com/abstract=1920484

Contact Information

S. Todd Brown (Contact Author)
SUNY Buffalo Law School ( email )
528 O'Brian Hall
Buffalo, NY 14260-1100
United States

Feedback to SSRN

Paper statistics
Abstract Views: 830
Downloads: 112
Download Rank: 195,314
Footnotes:  232