Getting to the Core of Stern v. Marshall: History, Expertise, and the Separation of Powers

American Bankruptcy Law Journal, Vol. 86, p. 23, 2012

NYU School of Law, Public Law Research Paper No. 12-17

33 Pages Posted: 26 Apr 2012

See all articles by Troy A. McKenzie

Troy A. McKenzie

New York University School of Law

Date Written: April 26, 2012

Abstract

This Article considers the Supreme Court’s decision in Stern v. Marshall, which limited the power of a bankruptcy judge to decide a common law claim. Stern is best understood as a combination of three arguments drawn from the Court’s prior Article III cases. The first is an argument from history — the past division of labor between the Article III judiciary and non-Article III adjudicators. The second is an argument from expertise — the appropriate selection of disputes that benefit from a specialized non-Article III forum. The third is an argument from separation of powers — the limitations on when the political branches may assign disputes outside the tenured judiciary. The Article offers a critique of these arguments as problematic or paradoxical. It concludes by showing why Stern will give only limited guidance on important questions about the power of bankruptcy judges.

Suggested Citation

McKenzie, Troy A., Getting to the Core of Stern v. Marshall: History, Expertise, and the Separation of Powers (April 26, 2012). American Bankruptcy Law Journal, Vol. 86, p. 23, 2012; NYU School of Law, Public Law Research Paper No. 12-17. Available at SSRN: https://ssrn.com/abstract=2046730

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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