Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

The Bankruptcy StrategistLJN NewslettersNewsSections

The Return of Stern v. Marshall

By Yitzhak Greenberg
March 27, 2013

“[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.

This premium content is locked for LJN Newsletters subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
The DOJ's Corporate Enforcement Policy: One Year Later Image

The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.

Use of Deferred Prosecution Agreements In White Collar Investigations Image

This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.

The DOJ's New Parameters for Evaluating Corporate Compliance Programs Image

The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.

CLE Shouldn't Be the Only Mandatory Training for Attorneys Image

Each stage of an attorney's career offers opportunities for a curriculum that addresses both the individual's and the firm's need to drive success.

A defendant in a patent infringement suit may, during discovery and prior to a <i>Markman</i> hearing, compel the plaintiff to produce claim charts, claim constructions, and element-by-element infringement analyses.