Academic journal article The American University Journal of Gender, Social Policy & the Law

Litigant Consent: The Missing Link for Permissible Jurisdiction for Final Judgment in Non-Article III Courts after Stern V. Marshall

Academic journal article The American University Journal of Gender, Social Policy & the Law

Litigant Consent: The Missing Link for Permissible Jurisdiction for Final Judgment in Non-Article III Courts after Stern V. Marshall

Article excerpt


Article III Section 1 of the United States Constitution grants Article III judges life tenure and protection from salary diminution.1 These constitutional safeguards are intended to free the courts of undue influence from the other branches of government2 and diminish separation of powers concerns.3 Nevertheless, these concerns may arise when Congress grants a non-Article III court jurisdiction to issue final judgment in a matter under one of the nine jurisdictional provisions constitutionally reserved for federal courts under Article III.4

The Supreme Court has split in its existing jurisprudence concerning separation of powers issues between Article III and non-Article III adjudicatory bodies.5 The Court's decisions are divided on whether a formalist approach or a balancing test is more appropriate to determine whether non-Article III courts have jurisdiction to issue a final judgment.6 In Northern Pipeline Construction Co. v. Marathon Pipe Line Co., the Court applied a formalist approach, which focused on the traditional separation of powers concerns of eroding Article III preeminence.7 Alternatively, the balancing approach of Commodities Federal Trading Commission v. Schor embodies a more structural approach where efficiency is valued as having more weight than Article III jurisdictional concerns.8

The Court recently revisited the issue of non-Article III adjudication in Stern v. Marshall.9 In a five-four decision, the majority held that a section of the Bankruptcy Amendments and Federal Judgeship Act (BAFJA) grants bankruptcy courts impermissible jurisdiction over state law counterclaims in violation of Article III.10 Despite the majority's avowal that Stern's holding is narrow with a limited impact, the dissent expressed concerns that a formalist approach is too broad and will reduce judicial efficiency and therefore negatively impact the federal court system.11 Such concerns are not unjustified, given that in the few months following Stern, courts across the country have struggled to apply the holding consistently.12

In a recent case, the Fifth Circuit, sua sponte, asked litigants to determine whether the holding in Stern, which restricts the jurisdiction of bankruptcy courts, also limits the jurisdiction granted to magistrate judges, who are non-Article III adjudicators who may issue final judgment per 28 U.S.C. § 636(c).13 Under § 636(c), magistrate judges are able to enter a final judgment with express litigant consent.14 By asking the parties to address this "substantial" jurisdictional issue, the Fifth Circuit attempts to address whether the formalist holding of Stern precludes the waiver of the right to Article III adjudication as set forth in Schor.15

This Comment argues that the requirements of Article III, as put forth in Stern, do not prevent a litigant from consenting to a non-Article III court to both hear and issue a final judgment by expressly waiving their constitutional right to Article III adjudication.16 Part II examines the formalist limitations of non-Article III adjudication as set forth by the Court.17 Part III argues that constitutionally limiting the jurisdiction of non-Article III tribunals is a formalist concern, rather than a structural one, and that such separation of powers concerns can be remedied through litigant consent and waiver of the right to Article III adjudication.18 Part IV proposes that courts interpret Stern narrowly, only limiting the jurisdiction of bankruptcy courts if the court lacks express litigant consent.19 Part V of this Comment concludes that the consent of the parties can overcome the constitutional issues of non-Article III adjudication without causing separation of powers concerns.20


A. Limited Jurisdiction of Non-Article III Courts

The judiciary places limits on non-Article III courts to preserve the boundaries between the different branches of government.21 Currently, the federal court system contains several non-Article III adjudicatory bodies including administrative courts, bankruptcy courts, and magistrate judges. …

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