New York University Public Law and Legal Theory Working Papers

Document Type



American Bankruptcy Law Journal, Vol. 86, 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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