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The Return of Stern v. Marshall

By Yitzhak Greenberg

“[A] maelstrom of opinions and articles has been written about the scope of Stern, ranging in tone from 'much ado about nothing' to 'the end of the bankruptcy world as we know it.'” In re BankUnited Fin. Corp., 462 B.R. 885 (Bankr. S.D. Fla. 2011).

These predictions have both come to fruition, most notably in the split between the Sixth and Ninth Circuits regarding whether consent can authorize bankruptcy courts to enter final orders in proceedings that would otherwise be the exclusive province of Article III Courts. In Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011), the Supreme Court concluded that “Congress, in one isolated respect [in granting authority to Bankruptcy Judges to enter judgment on all counterclaims], exceeded [Article III's] limitation in the Bankruptcy Act of 1984.” However, Stern's broad rationale regarding bankruptcy courts' infirmity as Article I courts has lead certain courts, to broadly construe the holding and greatly limit bankruptcy courts' authority.

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