The Article III Problem in Bankruptcy

Abstract

This Article reconsiders the implementation of Article III in the bankruptcy context. Recent rulings limiting the delegation of adjudicative power to non-Article III tribunals have generated only uncertainty and a profusion of litigation. The reason for this is that the Court’s Article III cases in this domain lack any foundational account of why bankruptcy judges implicate a constitutional problem. This Article identifies more precisely the Article III stakes in bankruptcy. Drawing on the well-tested creditors’ bargain theory of bankruptcy, it then develops a tractable, economically sophisticated constraint on congressional delegations. This account of bankruptcy’s necessary domain minimizes Article III and federalism harms while also enabling bankruptcy’s core operations to continue unhindered. To illustrate its utility, the Article applies that test to a range of common bankruptcy disputes, demonstrating that most (if not all) of the Court’s existing jurisprudence is sound in result, if not in reasoning.