Formalism Without a Foundation: Stern v. Marshall

47 Pages Posted: 28 Nov 2011

See all articles by Erwin Chemerinsky

Erwin Chemerinsky

University of California, Berkeley - School of Law

Date Written: November 27, 2011


In Stern v. Marshall (2011), the Supreme Court held that it violated Article III of the Constitution for a bankruptcy court to issue a final judgment as to a state law counterclaim. Although Chief Justice Roberts’ majority opinion is predicated on the need to have judges with life tenure to ensure judicial independence, it is difficult to see why this should matter for state law claims. Stern v. Marshall can be understood only as an exercise in formalism, rather than a functional approach to determining what can be decided by non-Article III judges. The formalistic reasoning of the Court is unsatisfying, especially in an area where the Court throughout American history has allowed non-Article III courts for functional reasons. Stern v. Marshall, if followed by the Court, could have enormous implications for the authority of the bankruptcy courts and more generally for federal jurisdiction.

Suggested Citation

Chemerinsky, Erwin, Formalism Without a Foundation: Stern v. Marshall (November 27, 2011). Supreme Court Review, Forthcoming, UC Irvine School of Law Research Paper No. 2011-51, Available at SSRN:

Erwin Chemerinsky (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States


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