Getting to the Core of Stern v. Marshall: History, Expertise, and the Separation of Powers
American Bankruptcy Law Journal, Vol. 86, p. 23, 2012
33 Pages Posted: 26 Apr 2012
Date Written: April 26, 2012
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.
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