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The Scope and Implications of Stern v. Marshall, 131 S. Ct. (2011)

Michael St. Patrick Baxter

Covington & Burling LLP

Elizabeth Gibson

University of North Carolina (UNC) at Chapel Hill - School of Law

Randal C. Picker

University of Chicago - Law School

R. Patrick Vance

Jones Walker

October 26, 2011

This paper discusses the possible meaning and effect of the Supreme Court’s recent decision in Stern v. Marshall, in which the Court held that the bankruptcy courts’ statutory authority to enter final judgments on certain counterclaims against creditors violates Article III of the Constitution. It was prepared by the authors as a report to the fall 2011 annual meeting of the National Bankruptcy Conference.

The Stern decision is enigmatic. While stressing the narrowness of the issue decided, the Court’s opinion rests on a rationale that, carried to its logical conclusion, could have broad implications for the exercise of bankruptcy jurisdiction specifically and more generally for the authority of other non-Article III decision makers.

This paper addresses the three major uncertainties raised by the decision: its scope (does it apply to more than just bankruptcy court’s authority over state law counterclaims?); the significance of consent (does party consent to bankruptcy court adjudication eliminate all constitutional concerns?); and resulting procedural issues (what authority do bankruptcy courts now have over matters statutorily designated as “core” that constitutionally require determination by an Article III court?). While addressing the arguments for a broad reading of Stern, the paper provides reasons for a more cautious and limited application of the decision.

Number of Pages in PDF File: 24

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Date posted: January 5, 2012  

Suggested Citation

Baxter, Michael St. Patrick and Gibson, Elizabeth and Picker, Randal C. and Vance, R. Patrick, The Scope and Implications of Stern v. Marshall, 131 S. Ct. (2011) (October 26, 2011). Available at SSRN: https://ssrn.com/abstract=1979503 or http://dx.doi.org/10.2139/ssrn.1979503

Contact Information

Michael Baxter
Covington & Burling LLP ( email )
One CityCenter
850 Tenth Street, NW
Washington, DC 20001-4956
United States
Elizabeth Gibson (Contact Author)
University of North Carolina (UNC) at Chapel Hill - School of Law ( email )
Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

Randal C. Picker
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0864 (Phone)
HOME PAGE: http://www.law.uchicago.edu/Picker/

R. Patrick Vance
Jones Walker ( email )
201 St. Charles Avenue
New Orleans, LA 70170-5100
United States
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