Consent, Coercion, and Bankruptcy Administration

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This essay analyzes the transformation of the role of U.S. bankruptcy courts since Stern v. Marshall.

The Supreme Court’s 1982 plurality decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co. remains one of the most controversial bankruptcy decisions in the Court’s history. Northern Pipeline limited Article I bankruptcy courts’ authority to hear and decide disputes that fall within the “core” of the bankruptcy power, but declined to provide much guidance concerning the parameters of these bankruptcy-specific “public rights.” Scholars and practitioners who expected the Court to abandon Northern Pipeline, however, were in for a rude awakening when the Court issued its decision in Stern v. Marshall in 2011. Writing for the majority, Chief Justice Roberts not only reaffirmed the constitutional limits of the Article I bankruptcy courts as outlined in Northern Pipeline, but also indicated that litigant consent is insufficient to overcome these limits.

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Journal of Business & Technology Law

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