Toward a Theory of Public Rights: Article III and the Bankruptcy Amendments and Federal Judgeship Act of 1984

Authors

Jeffrey H. Bush, University of Nebraska College of LawFollow

Abstract

I. Statement of the Problem

II. Crisis in the Bankruptcy Courts ... A. The Bankruptcy Act of 1898 ... B. The Bankruptcy Reform Act of 1978 ... C. Northern Pipeline ... D. The Emergency Rule ... E. The Bankruptcy Amendments and Federal Judgeship Act of 1984

III. Article III Jurisprudence ... A. Northern Pipeline's Formalism ... B. Since Northern Pipeline: Thomas and Schor—A Functional Approach ... 1. Thomas ... 2. Schor ... 3. Result of Thomas and Schor ... C. Granfinanciera—Questioning the Validity of the Core Proceeding

IV. A Proposed Theory of Public Rights ... A. A Critique of Recent Article III Jurisprudence ... 1. The Appellate Review Theory ... 2. A Functional Approach to Separation-of-Powers Doctrine ... B. A Theory of Public Rights ... 1. The Theoretical Construct ... a. Efficiency ... b. Fairness ... c. Congressional Power ... 2. The Personal Interests of Article III—Jurisdiction by Consent ... 3. The Structural Interests of Article III ... a. The Essential Attributes of Judicial Power ... b. State Law Causes of Action Arising Under Federal Law ... c. State Law Claims as a Necessary Incident of the Congressional Scheme

V. An Analysis of Bankruptcy Jurisdiction ... A. Turnover Proceedings ... B. In re Ben Cooper, Inc. … 1. Postpetition Contracts ... 2. Jury Trials in Bankruptcy Court ... 3. Article III and Jury Trials in Article I Tribunals

VI. Conclusion

Recommended Citation

Jeffrey H. Bush, Toward a Theory of Public Rights: Article III and the Bankruptcy Amendments and Federal Judgeship Act of 1984, 70 Neb. L. Rev. (1991)
Available at: https://digitalcommons.unl.edu/nlr/vol70/iss3/7